Motion to Compel Discovery in Sykes VS Sykes| Trellis.Law

On July 15, 2003 a Party Discovery was filed involving a dispute between Gwen R. Sykes, and Douglas Sykes, for Unlimited Civil in the District Court of Alameda County.

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1 STEVEN B. PISER, SBN 62414 ALAMEDA COUNTY
LAW OFFICES OF STEVEN B. PISER a
2 A Professional Corporation FEB 23 2004
499 Fourteenth Street, Suite 210
3 Oakland, California 94612 CLERK OF THE SUPERIOR COURT
Telephone 510-835-5582 by Ciaagt VOAT Mtr
4 Deputy
Attorney for Douglas G. Sykes
5 .

8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 IN AND FOR THE COUNTY OF ALAMEDA

10
GWEN R. SYKES, ) Case No. RG03106646
11 )
Plaintiff, ) SEPARATE STATEMENT IN SUPPORT
12 ) OF MOTION TO COMPEL ANSWERS
Vv. ) BY PLAINTIFF TO DEPOSITION
13 ) QUESTIONS
DOUGLAS SYKES, an individual, DOES 1+)
14 through 20, inclusive, ) Date: March 16, 2004
) Time: 2:00 p.m.
15 Defendants ) Dept: 31
) Reservation No.: 342283
16 )
Trial Date: October 1, 2004
17

18 LL INTRODUCTION

19 In October 2000, contemplating marriage, Doug Sykes, a retired attorney, and Gwen

20 Sykes, who holds a doctorate in public health, signed aprenuptial agreement which was intended

21 “to fix and define... property rights after marriage.” Among other things, Gwen stated “that

22 there are no oral agreements between the parties made at any time prior to the date of this

23 agreement, and each of the parties specifically waives and relinquishes any and all rights and

24 claims which he or she may presently have or which may have existed at any time prior to the

25 date of this Agreement arising under any legal principles announced, established, or implied

26 under any legal decision.” (Prenuptial Agreement { 13.) Gwen also stated that “she has been

27 represented in the negotiations for, and the preparation of, this Agreement by counsel of ...her

28 own choosing ...and read this Agreement and had itscontents fully explained to ... her by such

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STEVEN
B. PISER

SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
counsel.” (Prenuptial Agreement § 12.)

Gwen and Doug get married, and their marriage ends in dissolution proceedings. |

Gwen then files this action seeking to enforce oral agreements allegedly made before the

October 2000 agreement, which stated no agreements exist, and for damages for injuries as a

result of her alleged exposure to a sexually transmitted disease in 1992.

Now, in sworn deposition testimony, Gwen denies any understanding of the prenuptial

agreement, claiming that she did not read or understand the agreement, and refuses to answer

questions addressing the very representations she made in the prenuptial agreement claiming that

those questions invade the attorney-client privilege.

10 This motion raises the question: may a party make written representations about the

11 specific nature of her communications with counsel, subsequently disavow them and then

12 preclude any inquiry into the matter by claiming the shield of the attorney-client privilege?

13 II. STATEMENT OF RELEVANT FACTS? AND SUMMARY OF RELEVANT

14 PLEADINGS AND DOCUMENTS CRC 335(c)(6)

15 Plaintiff Gwen R. Sykes filed this action on July 15, 2003. The complaint alleged, in

16 essence, that she and defendant Douglas Sykes had been involved in an intimate relationship from

17 1991 to 2002 when he filed for divorce, that defendant had given her a sexually transmitted

18 disease and, in return for her promise to keep itsecret, had told her that he would support her

19 forever. She also alleged that she has a co-ownership interest in defendant’s Berkeley home.

‘Tt

21 MTT

22
'Some procedural background may be of assistanceto theCourt. The partiesmarried on August 15,2001 after
23 execution of the prenuptial agreement inOctober 2000. In2002, Doug fileda petitionfor dissolutionof the marriage
(action number 850186-2). The marriage was legallydissolved in December 2003. This actionwas filedon July 15,
24 2003. Prior todefendant’s knowledge thatthe action was filed,on July 16, 2003, defendant fileda declaratoryrelief
action seeking a determination that theprenuptial agreement bars plaintiff's
claims. Judge Kraetzer sustained,
25 without leave to amend (based on CCP 1061), Gwen’s demurrer to thedeclaratory reliefaction,finding thatthis
action provided a vehicle fordetermination of thevalidity ofthe prenuptial agreement.
26 On January 29, 2004, with a differentlawyer than inthiscase, Ms. Sykes filedanother action
(RG04138633), assertingclaims against Douglas, his octogenarian mother, hissister,the mother of hisson and
27 others,alleging a vastconspiracy to assaultplaintiff,
invade her right ofprivacy, make false courtfilings,institute
civiland criminal cases, abuse of process, violationof civilrights,slander,libeland encouraging ayoung child to
28 make falseclaims ofabuse. Defendant has not yetappeared inthat action.
*This statement of factsand legal argument aregermane to allof thequestions which are the subject ofthismotion.
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B. PISER

SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
A. The Complaint

While characterized as a “Marvin” action, this lawsuit has three components. First, there

is aclaim for breach of contract (both oral and implied [firstand second causes of action])

whereby defendant allegedly agreed that he would “support plaintiff, pay for her medical needs,

provide financial security ...and provide her with a co-ownership interest in the home.” Plaintiff

also seeks to impose a constructive trust with regard to a home in the Berkeley hills (third cause

of action) and claims of fraud (fourth cause of action). She has also sued for personal injuries,

claiming that thirteen years ago she got herpes from Doug (5", 6" & 7™ causes of action).
Among other things, plaintiff alleges that she and defendant began “co-habiting on a part-

10 time basis” sometime shortly after their relationship began in the spring of 1991 (complaint § 5)

11 and that “while they lived together” defendant supported plaintiff” (Complaint J 20 p. 5:9-10.)

12 The agreements which plaintiff seeks to enforce were allegedly made in 1991 (Complaint

13 4] 14) and 1994 (Complaint { 8).

14 Plaintiff also claims that she is entitled to a 50 percent ownership interest in defendant’s

15 home at 275 Alvarado, Berkeley, to which defendant has exclusive title. (Complaint § 26 (6:10-

16 12).)

17 Defendant denies the existence of any agreement to support plaintiff, denies that he

18 provided plaintiff with financial support as she claims, and denies the existence of any agreement,

19 express or implied, to provide plaintiff with any interest in his home. Defendant also asserts that

20 the prenuptial agreement provides a complete defense to this action.

21 B. Prenuptial Agreement and Deposition Testimony.

22 In the prenuptial agreement the parties acknowledged that they had made no prior oral

23 agreements and waived any and all prior rights they may have had prior to the prenuptial

24 agreement.

25 13. No Oral Agreements. Each of the parties acknowledge
that there are no oral agreements between the parties made at any
26
time prior to the date of this Agreement, and each of the parties
27
specifically waives and relinquishes any and all rights and claims
28 which he or she may presently have or which may have existed at
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B. PISER
SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
any time prior to the date of this Agreement arising under any
legal principles announced, established or implied under any legal
decision. This Agreement shall become effective only upon the
contemplated marriage of the parties.
Plaintiff testified that before signing the agreement she independently met with two

attorneys: Glen Oleon and Patricia Blyth. She met with Mr. Oleon between 1999 and June of

2000, when he modified a draft prenuptial agreement that she gave to him. See Depo 78:3-12;

134:14-17. >. She testified that she considered Mr. Oleon to be both her attorney and defendant’s

attorney (Depo 78:20-23) and that she did not consider him to have an undivided loyalty to her

(Depo 79:6-21).

10 In October 2000 she met with Patricia Blyth. (Depo. 100:17-101:8.) Ms. Blyth certified

11 in writing that she explained the prenuptial agreement and itslegal effect to plaintiff, that plaintiff

12 acknowledged that she understood its legal effects and executed itvoluntarily and in Ms. Blyth’s

13 presence. Plaintiff, to the contrary, testified that she signed “a document that [she] gave to

14 Attorney Blyth” and did not sign it in the attorney’s presence. (Depo 246:22-23; 247:13-18.)

15 With respect to both Mr. Oleon and Ms. Blyth, she firmly denied that her purpose in going

16 to the attorneys was to consult with them regarding the prenuptial agreement:

17 Q. You went to Mr. Oleon and Ms. Blyth to consult with them with regard to

18 prenuptial agreements; is that correct?

19 A. I really went to them because Douglas asked me to go to them. That was

20 the purpose of my going to them.

21 Q. You didn’t consult with them with regard to prenuptial agreements?

22 A. I simply went to have itsigned.

23 Q. So you would sign it?

24 A. Pardon me?

25 Q. So — for you to sign it, correct?

26 A. Well, I signed itbefore I went according to Doug’s instructions.

27 Q. My question is,is what was the purpose — pardon me — of your

28 >Defendant will lodge portions of thedeposition as required by Code of CivilProcedure section 2025(o).

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SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
consultation with Glenn Oleon?

A. My purpose was to satisfy Doug’s request that Itake the document to an

attorney and have it signed.
See Depo. 256:7-257:5.

Paragraph 12 of the agreement (signed by plaintiff) states:

12. Representation by Counsel/Attorneys Fees. (A) Each of the parties
acknowledges that he or she has been represented in the negotiations for, and the
preparation of, this Agreement by counsel of his or her own choosing; that he or
she had read this Agreement and had its contents fully explained to him or her by
such counsel, and is fully aware of the contents hereof; and each party has or will
10 compensate his or her own attorney; and (b) Neither party shall seek an award of
attorney’s fees under California Family Law Act or other law in the event that
1
either files for dissolution of marriage. (Italics added).
12
Plaintiff reiterated that her counsel had explained matters to her in Exhibit C’* to the
13
14 agreement:

15 2. The parties further acknowledge that in view of the above-mentioned

16 disclosure of the assets and obligations, each party as a complete and adequate
knowledge and understanding of the nature and extent of the property and
17
financial obligations of the other party. Each of the parties, being
18 independently represented by counsel, has received the full and adequate

19 assistance of counsel in determining and understanding the nature and extent
of the assets and financial obligations of the other party. (Italics added.)
20
21 And to ensure that itwas understood that the plaintiff was given allthe information necessary to

22 understand the agreement, her counsel’ attached an attestation to that effect:
23
[Ms. Blyth] hereby certifies that he (she) is an attorney duly licensed and admitted
24 to practice in California; and has been employed by Wife, and has advised and
25 consulted with Wife in connection with property rights and has fully explained to
her the legal effect of the foregoing Agreement and the effect which ithas upon her
26
27 * Exhibit C isthe financialdisclosure certification.Itisattached tothe Piser declaration. Both Gwen and Doug
provided writtendisclosures of theirassetswhich were attached to theagreement.
28 > An issue has been raised by plaintiffregarding theauthenticity of the Blyth signature. Blyth’s deposition was set
for February 10,2004. Itwas continued untilafterthe ruling on this motion.
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B. PISER

SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
rights otherwise obtaining as a matter of law; that Wife after being fully advised
by the undersigned, acknowledges to the undersigned that she understands the
legal effect of the Foregoing Agreement and executed the same freely and
voluntarily in the presence of the undersigned. (Italics added.)
Plaintiff then gave the agreement to defendant.® (Depo 140:7-11; 248:22-249:1.)

Il. MEET AND CONFER EFFORTS

The parties have engaged in substantial good faith meet and confer efforts which occurred

both during and after the deposition. The parties have a legitimate good faith dispute which

requires judicial intervention. No monetary sanctions are being sought in connection with this

motion.’

IV. RELIEF SOUGHT

11 By this motion, defendant seeks an order compelling the witness to answer the subject

12 questions, and counsel for plaintiff has agreed that the witness would be instructed to not answer

13 all questions dealing with her communication with her attorneys in connection with the review

14 and execution of the prenuptial agreement.

15 IV. DEPOSITION QUESTIONS AND RESPONSES AND ADDITIONAL REASONS

16 FOR COMPELLING ANSWERS

17 Question No. 1 (Page 125, Lines 1-4):

18 Q. Did you tellher you didn't understand what she was telling you?

19 MR. BUELL: Objection, attorney/client privilege, instruct the witness not to answer.

20 Reasons for Compelling Response:

21 A. Factual Basis Regarding this Question.

22 Patricia Blyth is an attorney who plaintiff consulted with regard to the prenuptial

23 agreement she admits she signed, and Ms. Blyth signed a certification that she explained the

24 agreement and that Gwen “acknowledges” she understands the agreement.

25
° The version of theagreement plaintiffadmits to giving defendant was Exhibit 12, bearing an execution date of
26 October 7,2000. The agreement dated October 18,2000 isidenticalexcept for the correction oftypographical errors,
bears signatures ofboth parties and counsel. At first
Gwen said thesignature appeared tobe hers, latershe denied it.
27 ’ The partieshave agreed thatin addition tothese questions, thewitness would be directed not to answer similar
questions. The deposition went over many days. Examination was limited tothree hours per session,from 9:00 a.m.
28 to 12:00 p.m. Most sessionswere shorter,as plaintiff
couldn’t show up on time. The deposition, as tothisphase of
examination, has been completed. Issues of “injuries”and “damages” have been reserved for furtherexamination.
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8. PISER
SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
Gwen signed an agreement that stated that “‘she has read this Agreement and had its

contents fully explained to ...her by such counsel, and is fully aware of contents...” and received

“full and adequate assistance of counsel in determining and understanding the nature and extent

of the ...financial obligations of the other party.” (See 5:16-21 above.)

Plaintiff testified that Patricia Blyth explained the contents of the prenuptial agreement to

her after she signed it (124:11-18), but in response to aquestion posed by her own lawyer, said

she did not understand what Pat Blyth was telling her (124:23-24). The subject question was

asked as a follow up to the question asked by her own lawyer.

When plaintiff delivered the agreement to a third party (defendant), she voluntarily

10 disclosed that the attorney had “fully explained” the agreement to her and that she received “full

11 and adequate assistance of counsel ...understanding” the financial obligations. Her attorney

12 [Blyth] also made clear that she “fully explained” the agreement and that Gwen, “acknowledges”

13 that “she understands the legal effect.” The representations regarding communications with Blyth

14 were included to help assure the agreement was enforceable. In effect, plaintiff made a public

15 assertion as to the communications between herself and her attorney for her own benefit. She

16 now seeks to deny that very representation, claiming that the attorney-client privilege protects the

17 communications on which that representation is based. To allow her to deny her own attorney’s

18 representation while preventing defendant to explore the facts as to that representation deprives

19 defendant of the ability to properly defend against her action. She and her attorney have

20 represented that plaintiff was informed of the legal effect of the agreement; defendant isentitled

21 to investigate just what she was told in order to evaluate whether her present claim of “no

22 knowledge” is tenable.

23 It would be unjust for Gwen to testify that she did not understand the agreement yet

24 foreclose examination regarding her discrepancy between the writing and her new version of the

25 facts.

26 B. Legal Analysis.

27 While a client has a privilege to refuse to disclose, and prevent another from disclosing, a

28 confidential communication between the client and his or her lawyer (Evidence Code section 954)
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the burden of establishing the applicability of the privilege is that of the party asserting it. People

ex rel. Dept. of Public Works v.Donovan (1962) 57 Cal.2d 346, 357.

A privilege does not exist ifthere is a waiver (Evidence Code section 912[a]) or ifa

necessary element, that there existed a confidential communication in the course of a lawyer-

client relationship, is absent. For both reasons this question should be answered.

1. The Attorney-Client Privilege Does Not Apply to Communications Regarding

the Specific Facts Disclosed in the Prenuptial Agreement.

(a) The attorney-client privilege was waived

Like any other privilege, the attorney-client privilege may be waived ifthe holder has

10 disclosed a significant part of the communication or has consented to such disclosure by anyone.

11 Evidence Code section 912(a). By the representations and statements plaintiff made in paragraph

12 12 she manifested a clear intention to disclose the contents of communications between herself

13 and counsel regarding the agreement and her understanding of it.

14 Clearly this was not intended to be a privileged communication. There is a disclosure that

15 (1) plaintiff had consulted an attorney; (2) the attorney had explained to her the contents and legal

16 effect of the prenuptial agreement; and (3) plaintiff understood the legal effect of the agreement

17 and executed it freely and voluntarily in the presence of the attorney. It was obviously designed

18 to meet the evidentiary requirements of Family Code section 1615 as it existed at the time of the

19 agreement in the event either party challenged the agreement. See Jn re Bonds (2000) 24 Cal.4th

20 1, 15 (premarital agreement unenforceable absent statutory showing).

21 An analogous case is Jones v.Superior Court (1981) 119 Cal.App.3d 534. Plaintiff was a

22 woman who claimed injury as a result of her mother's ingesting the drug diethylstilbestrol (DES)

23 while plaintiff was in utero. The mother testified regarding her ingestion of DES before the

24 plaintiff's birth but refused to answer questions about her medical history after the birth, based on
25 the physician-patient privilege. Defendant pharmaceutical companies sought to discover various

26 communications regarding the mother’s medical history after plaintiff's birth. fd. at 542-543.

27 The firstdistrict held that “[b]y testifying freely that she ingested DES, and as to certain of

28 the circumstances in which she did so, petitioner has disclosed a ‘significant part’ of her
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SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
communications with physicians on that subject, and on the inextricably related subject of her

pregnancy with plaintiff.” Thus, she has waived her statutory privilege as to those matters. Td. at

546. So, too, here plaintiff has publicly asserted that she had communications with her counsel

regarding the content, nature and legal effect of the written contract she was executing. She has

represented in the contract that the attorney made specific communications to her about the

contract and its effect. At her deposition she claims the attorney made no such communications

and/or she did not understand them, contrary to her previous written representations. In these

circumstances, defendant is entitled to discover which of her two assertions is the truth. That can

only be done by permitting inquiry into what the attorney told her about the content, nature and

10 legal effect of the agreement.®

11 Plaintiff has waived her privilege with regard to these communications.

12 (b) Plaintiff was not a “client” of the attorney

13 One who seeks to assert the attorney-client privilege must establish that a confidential

14 communication occurred during the course of an attorney-client relationship. People v.Meredith

15 (1981) 29 Cal.3d 682, 689; Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d

16 436, 448. The determination of the existence of an attorney-client relationship is one of law.

17 People ex rel.Lockyer v. Superior Court (2000) 83 Cal.App.3d 387, 405.

18 A “client” is a person who consults a lawyer for the “purpose of retaining the lawyer or

19 securing legal service or advice from him in his professional capacity.” Evidence Code section

20 951. This case presents a highly unusual situation in which the “client” denies that she consulted

21 the attorneys for any legal service or advice whatsoever. She claims, instead, to have met with

22 them solely for the purpose of signing and/or taking a signed prenuptial agreement to them

23 because “Douglas asked me to go to them. That was the purpose of my going to them.” See

24 // 1]

25 ///t

26 /f//

27 *It isimportant to note thatdefendant does not seek todiscover every communication between plaintiffand her
counsel, only those communications relatingto her and her counsel’s assertionthat she was informed of thecontent,
28 nature and legal effectof theagreement.
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SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
Depo 256: 14-16." In essence, plaintiff takes the position that she only went to the attomeys upon

defendant’s instruction and as far as she was concerned the attorneys were, at most, attesting

witnesses. Cf. Evidence Code section 959 (no privilege as to communication relevant to issue

concerning intention of client executing document of which lawyer is attesting witness).

The validity of the prenuptial agreement, including itsprovisions disavowing any prior

oral agreements and asserting that the parties have read and are aware of itsprovisions, will be a

central_perhaps dispositive—issue in this case. In an obvious effort to avoid the consequences of

these provisions, plaintiff denies that she went to counsel for legal advice, denies that anyone

explained the contents to her before she signed it(except defendant), and claims she did not

10 understand what Ms. Blyth said to her about it. See Depo 123:6-127:5. But plaintiff wants it

11 both ways: she wants to deny the fact that she was seeking independent legal advice but wants to

12 stillclaim the protection of the attorney-client privilege. She cannot do both.

13 Cases in which a party denies legal representation but claims the attorney-client privilege

14 are, to say the least, rare. However that contention was addressed in Maier v. Noonan (1959) 174

15 Cal.App.2d 260.

16 The plaintiff in Maier sued the defendant for child support. Both parties were married to

17 other persons at the time. The plaintiff testified that her husband was impotent. The jury

18 returned a verdict for the plaintiff. /d. at261-262.

19 The defendant moved for a new trial,offering the affidavit of an attorney who had sued

20 the plaintiff and her husband in another matter. He averred that after that matter was concluded

21 (but before the institution of the support action), Mrs. Maier called the attorney and asked for his

22 legal opinion as to whether she could obtain child support from a man not her husband. He told

23 her that ifshe had had sexual intercourse with her husband within ten months prior to the child’s

24 birth and her husband was not impotent, she could not collect child support in his opinion. In

25 response to the affidavit Mrs. Maier filed an affidavit stating that she had never discussed child

26
’ Although plaintifftestifiedinthe affirmative when asked whether she understood that she was “consulting with Mr.
27 Oleon inconnection with an agreement that [she]was enteringinto with Mr. Sykes” (see Depo 255:19-23), when
pressed as to whether she went tosee both attorneys’ toconsult with regard to theprenuptial agreement she testified
28 thatshe “really” went to them only tohave theagreement signed. See Depo 256:11-19.

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support with the attorney. /d. At 262-263.

At the subsequent trial the plaintiff objected to the admission of the lawyer’s declaration

on the ground of attorney-client privilege. The trial judge sustained the objection because the

affidavit itself demonstrated that the plaintiff asked the lawyer’s advice and he gave it. /d. at 264.

Judgment was again for the plaintiff.

The appellate court reversed.

It appears to this court that [the plaintiff] cannot...deny under oath
that she ever talked to [the attorney] or ever sought or received any
advice from him...and then...claim that the privilege of attorney and
client existed between [the attorney] and herself.
10
11 Id. at 265. The court concluded that there was “obviously great doubt and uncertainty as to

12 whether the communication” was privileged. Jd. at 266.

13 The lesson of Maier is that a party cannot both deny the attorney-client relationship and

14 also claim the privilege. ‘““The privilege which protects attorney-client communications may not

15 be used both as a sword and a shield.”” Columbia Pictures TV v.Krypton Broadcasting (9" Cir.

16 2001) 259 F.3d 1186, 1196, cert. denied 534 U.S. 1127 (2002).'° Plaintiff has chosen to testify
17 under oath that she went to the attorneys, not seeking opinions and advice, but simply to satisfy

18 defendant’s request and to have the documents signed or shown to the attorney. This is not

19 sufficient to establish an attorney-client relationship and raise the protection of the privilege.

20 None of the communications between the attorneys and plaintiff are subject to the attorney-client

21 privilege.

22 Question No. 2 (Pages 1050, Lines 24 through 1051, Line 4)

23 Q. At any time before -- strike that. At any time before you got married, were the contents of
Exhibit GS-12 fully explained to you by counsel?
24
MR. BUELL: And I am going to object and instruct the witness not to answer, attorney/client
25 privilege.
26
27 ////
28
CaN copy of thecase is attached.
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STEVEN
B. PISER

SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
Reasons for Compelling Response:

WN A. Factual Basis Regarding this Question.

Patricia Blyth is an attorney who plaintiff consulted with regard to the prenuptial
WY

agreement she admits she signed. The agreement recites that its contents were “fully explained”
rh

by counsel. Ms. Blyth signed a certification that she explained the agreement and that Gwen

“acknowledges” she understands the agreement."

Gwen signed an agreement that stated that “she has read this Agreement and had its

contents fully explained to ...her by such counsel, and isfully aware of contents...” and received

“full and adequate assistance of counsel in determining and understanding the nature and extent
10 of the ...financial obligations of the other party.” (See 5:16-21 above.)
11 Plaintiff signed an agreement wherein she said itscontents were “fully explained” to her
12 by counsel. (See 5:7-12.) She now claims she never read the agreement and didn’t understand it.
13 In addition to all other reasons, the question is clearly appropriate as impeachment. See Evidence
14 Code section 780(h).
15 When plaintiff delivered the agreement toa third party (defendant), she voluntarily
16 disclosed that the attorney had “fully explained” the agreement to her and that she received “full
17 and adequate assistance of counsel ...understanding” the financial obligations. Her attorney
18 (Blyth) also made clear that she “‘fully explained” the agreement and that Gwen, “acknowledges”
19 that “‘she understands the legal effect.” The representations regarding communications with Blyth
20 were included to help assure the agreement was enforceable. In effect, plaintiff made a public
21 assertion as to the communications between herself and her attorney for her own benefit. She
22 now seeks to deny that very representation, claiming that the attorney-client privilege protects the .
23 communications on which that representation is based. To allow her to deny her own attorney’s
24 representation while preventing defendant to explore the facts as to that representation deprives
25 defendant of the ability to properly defend against her action. She and her attorney have
26 represented that plaintiff was informed of the legal effect of the agreement; defendant isentitled
27
28 "'See footnote 5 ante.

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B. PISER
SEPARATE STATEMENT ISO MOTION TO COMPEL ANSWERS BY PLANTIFF TO DEPOSITION QUESTIONS
FE

to investigate just what she was told in order to evaluate whether her present claim of “no

knowledge” is tenable.

It would be unjust for Gwen to testify that she did not understand the agreement yet

foreclose examination regarding her discrepancy between the writing and her new version of the

facts.

B. Legal Analysis.

While a client has a privilege to refuse to disclose, and prevent another from disclosing, a

confidential communication between the client and his or her lawyer (Evidence Code section 954)

the burden of establishing the applicability of the privilege is that of the party asserting it. People

10 ex rel. Dept. of Public Work

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Document Filed Date

February 23, 2004

Case Filing Date

July 15, 2003

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Party Discovery: Sykes VS Sykes

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