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This case was last updated from Los Angeles County Superior Courts on 03/29/2020 at 17:19:13 (UTC).

C&M INVESTMENT GROUP LTD VS PHILIP RICHARD POWERS ET AL

Case Summary

On 10/10/2007 C M INVESTMENT GROUP LTD filed a Property - Other Property Fraud lawsuit against PHILIP RICHARD POWERS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MAUREEN DUFFY-LEWIS, ELIHU M. BERLE, MARK A. BORENSTEIN, ROBERT H. O'BRIEN, MATTHEW ST. GEORGE, RONALD M. SOHIGIAN, RAFAEL A. ONGKEKO, RANDOLPH M. HAMMOCK and EDWARD B. MORETON. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8888

  • Filing Date:

    10/10/2007

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MAUREEN DUFFY-LEWIS

ELIHU M. BERLE

MARK A. BORENSTEIN

ROBERT H. O'BRIEN

MATTHEW ST. GEORGE

RONALD M. SOHIGIAN

RAFAEL A. ONGKEKO

RANDOLPH M. HAMMOCK

EDWARD B. MORETON

 

Party Details

Plaintiffs

C&M INVESTMENT GROUP LTD.

KARLIN HOLDINGS LIMTED PARTNERSHIP

Defendants and Respondents

CAMPBELL NEIL DAVID

DOES 1 THROUGH 50

GUANANA GRIS S.A.

POWERS INVESTMENT & MANAGEMENT CO.

POWERS INVESTMENT AND MANAGEMENT

POWERS INVESTMENTS

POWERS INVESTMENTS & MANAGEMENT CO.

POWERS INVESTMENTS AND MANAGEMENT INC.

POWERS MANAGEMENT & INVESTMENTS CO.

POWERS MANAGEMENT & INVESTMENTS INC.

POWERS MANAGEMENT AND INVESTMENT

POWERS PHILIP RICHARD

PROTECCION FORESTAL DE TECA S.A.

POWERS INVESTMENTS AND MGT. INC. S.A.

Not Classified By Court

CHAMPLIN HARVEY

Attorney/Law Firm Details

Plaintiff Attorneys

DAUCHOT LUKE L.

KIRKLAND & ELLIS LLP

SCHWEITZER LAUREN

Defendant Attorneys

KARISH & BJORGUM

MICHAELS JONATHAN A. ESQ.

BAKER MARQUART & CRONE LLP

MLG AUTOMOTIVE LAW APLC

THOMAS CHRISTOPHER JAY

 

Court Documents

Minute Order - MINUTE ORDER (RESCHEDULED HEARING ON APPLICATION FOR ORDER FOR APPEARANCE A...)

3/20/2020: Minute Order - MINUTE ORDER (RESCHEDULED HEARING ON APPLICATION FOR ORDER FOR APPEARANCE A...)

NOTICE OF ORDER CONTINUING CONTEMPT TRIAL OF PHILIP RICHARD POWERS TO JUNE 20, 2018

5/16/2018: NOTICE OF ORDER CONTINUING CONTEMPT TRIAL OF PHILIP RICHARD POWERS TO JUNE 20, 2018

NOTICE OF NOVEMBER 29, 2011 RULING

11/29/2011: NOTICE OF NOVEMBER 29, 2011 RULING

Minute Order -

5/8/2012: Minute Order -

NOTICE OF ORDER CONTINUING JUDGMENT DEBTOR EXAMINATION OF PHILIP RICHARD POWERS

9/11/2013: NOTICE OF ORDER CONTINUING JUDGMENT DEBTOR EXAMINATION OF PHILIP RICHARD POWERS

OPPOSITION TO MOTION TO COMPEL RESPONSES

10/22/2013: OPPOSITION TO MOTION TO COMPEL RESPONSES

APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION

8/14/2014: APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION

Minute Order -

12/15/2014: Minute Order -

DEFENDANT POWERS' OPPOSITION TO PLAINTIFFS' MOTION (1) TO COMPEL PRODUCTION OF DOCUMENTS, AND (2) FOR AN ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES

6/15/2015: DEFENDANT POWERS' OPPOSITION TO PLAINTIFFS' MOTION (1) TO COMPEL PRODUCTION OF DOCUMENTS, AND (2) FOR AN ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS AND AUTHORITIES

DEFENDANT POWERS' POST SENTENCING STATUS REPORT

4/7/2017: DEFENDANT POWERS' POST SENTENCING STATUS REPORT

 

Docket Entries

  • 07/01/2020
  • Hearing07/01/2020 at 08:30 AM in Department 44 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Order for Appearance and Examination

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  • 04/29/2020
  • Hearing04/29/2020 at 08:30 AM in Department 44 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case Review

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  • 03/24/2020
  • DocketNotice (of Continuance of April 1, 2020 Debtor's Examiniation to July 1, 2020); Filed by C&M Investment Group, Ltd. (Plaintiff); Karlin Holdings Limted Partnership (Plaintiff)

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  • 03/20/2020
  • Docketat 1:30 PM in Department 44, Edward B. Moreton, Presiding; Non-Appearance Case Review

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  • 03/20/2020
  • DocketCertificate of Mailing for ((Rescheduled Hearing on Application for Order for Appearance a...) of 03/20/2020); Filed by Clerk

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  • 03/20/2020
  • DocketMinute Order ( (Rescheduled Hearing on Application for Order for Appearance a...)); Filed by Clerk

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  • 02/26/2020
  • Docketat 1:30 PM in Department 44, Edward B. Moreton, Presiding; Nunc Pro Tunc Order

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  • 02/26/2020
  • DocketMinute Order ( (Nunc Pro Tunc Order Re Hearing on Motion to Extend Lien)); Filed by Clerk

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  • 02/25/2020
  • DocketProof of Service (not Summons and Complaint); Filed by C&M Investment Group, Ltd. (Plaintiff); Karlin Holdings Limted Partnership (Plaintiff)

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  • 02/13/2020
  • DocketNotice (of February 9, 2020 Order re Powers' Compliance with Section 4 of the Court's January 28, 2019 Order on Production of Privilege Log); Filed by C&M Investment Group, Ltd. (Plaintiff); Karlin Holdings Limted Partnership (Plaintiff)

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1,851 More Docket Entries
  • 11/30/2007
  • DocketPLAINTIFF'S EX PARTE APPLICATION TO APPOINT PEDRO M. MUNOZ AS PLAINTIFF'S PROCESS SERVER FOR SERVICE OF PROCESS IN COSTA RICA

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  • 11/30/2007
  • DocketMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION TO APPOINT PEDRO M. MUNOZ, ETC

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  • 11/30/2007
  • DocketORDER APPOINTING PEDRO M. MUNOZ AS PLAINTIFF'S PROCESS SERVER FOR SERVICE OF PROCESS IN COSTA RICA

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  • 11/30/2007
  • DocketORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER EXTENDING THE TIME TO SERVE DEFENDANTS WITH THE COMPLAINT

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  • 10/30/2007
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/30/2007
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 10/30/2007
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/10/2007
  • DocketSUMMONS

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  • 10/10/2007
  • DocketComplaint; Filed by C&M Investment Group, Ltd. (Plaintiff); Karlin Holdings Limted Partnership (Plaintiff)

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  • 10/10/2007
  • DocketCOMPLAINT FOR: 1. FRAUDULENT INDUCEMENT; ETC.

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Tentative Rulings

Case Number: BC378888    Hearing Date: March 25, 2021    Dept: 73

3/25/2021

Dept. 73

Rafael Ongkeko, Judge presiding

C&M INVESTMENT GRP., LTD. v POWERS (BC378888)

Counsel for Plaintiff/Judgment Creditor/moving party: Luke Dauchot, Lauren Schweitzer, Sable Hodson (Kirkland & Ellis)

Counsel for Defendant/Judgment Debtor/opposing party (re contempt proceedings): Shelan Joseph (Deputy Public Defender)

Plaintiffs’ motion for relef from deficient privilege log (filed 12/9/2020)

TENTATIVE RULING

Given that Judgment Debtor has failed to comply with the court’s order, including specifically identifying the documents that Judgment Debtor claims are privileged for the court to analyze, and given that Judgment Debtor has expressed that he does not intend to make any additional filings, the court finds that Judgment Debtor has waived any privilege objections regarding communications with Lierow and must produce those documents to Judgment Creditor within 30 days.

The March 25, 2021 hearing is taken off calendar. No appearances are required.

Discussion

Prior Proceedings

On January 17, 2012 the court entered judgment in favor of Plaintiffs C&M Investment Group, Ltd. and Karlin Holdings, LP, and against, among others, Defendant Phillip Richard Powers totaling $36,680,676.46, plus attorneys’ fees, costs, and interest relating to allegations surrounding violations of civil RICO, fraud, and breaches of contracts.

Since then, heavy post-judgment litigation has ensued, including multiple contempt orders against Powers.

The current motion stems from the court’s September 2018 order finding Powers in contempt and January 2019 order allowing Plaintiffs to collect and search Powers’ documents. (Mvg. Schweitzer Decl. Exs. 1 & 3). On May 14, 2019, in ruling on a motion for a protective order, the court detailed a procedure whereby documents that were responsive to Plaintiff’s searches would be sequestered and gradually released to Plaintiffs while Powers’ counsel reviewed them for privilege. (Id. Ex. 6) On April 27, 2020 Powers’ counsel provided a privilege log. (Id., Ex. 14). Plaintiffs argue that in reviewing the privilege log, certain documents do not appear to be privileged. (See, Id., Ex. 15 for a spreadsheet from Plaintiffs’ counsel identifying the documents that Plaintiffs contend do not appear to be privileged).

On December 9, 2020 Plaintiffs filed this motion, asking the court to deem that four categories of documents that Powers claims are privileged fall outside of the scope of privilege and should be disclosed to Plaintiffs. Those categories are:

· 134 communications that include non-lawyer third parties

· 758 communications with Marianne Lierow

· 62 communications with Harvey Champlin

· 37 communications with Harold Wrobel

The court granted the motion as to certain categories, and set further proceedings as to the Lierow documents. Specifically, the court ruled as follows:

To the extent that Defendant wishes to identify any specific communications and offer evidence/facts to the court (e.g., facts/evidence that show that the communications that Defendant identifies was necessary for legal consultation, etc., then the court orders as follows:

· Within five days, Defendant must file his notice that Defendant intends to assert specific documents that Defendant contends are privileged. If Defendant does not do so, Defendant will be deemed to have waived any privilege as to these documents.

· Within twenty days, Defendant will serve and lodge with the court a statement that substantially contains the following information:

Ex. #

Control ID

Description/Subject of Doc

Privilege

Explanation

Grant

Deny

· The statement shall be formatted in a manner that is easy for the court to review (including all columns being contained on one page, rather than spread across two pages).

· Defendant will number each document consecutively under the Ex. # column.

· To the extent that Defendant wants to challenge any specific communications to Lierow, Defendant must also lodge a copy of the retainer agreement that establishes that attorney-client relationship.

· In the Description column, Defendant will give a general description of the topic of the communication.

· Under the Privilege column, Defendant will identify the specific privilege asserted without acronyms. Under the Explanation column, Defendant will specifically explain why this falls under the definition of confidential under Evid. Code § 952 (e.g., how was it in furtherance of legal consultation and why).

· Defendant will leave the Grant and deny Columns blank—those columns shall be for the court’s use only.

· AN ADDITIONAL COLUMN SHALL BE INCLUDED FOR PLAINTIFF’S RESPONSE

Subsequent Proceedings

On January 14, 2021 Judgment Debtor/Defendant filed an intent to assert privilege over communications with Lierow. Further, Defendant states that while the court’s prior order requires Defendant to lodge a copy of a retainer agreement, none exists with Lierow. Lierow states “In Costa Rica, in house attorneys’ such as me, seldomly sign agreements with their clients.” Defendant, however, never served or lodged with the court a statement with more details as to the claimed privileged document—i.e., a log that contains the specific documents that Defendant claims are privileged.

Plaintiff met and conferred with Defendant and Defendant confirmed that Defendant would not be filing any additional documents with the court. Given that Defendant has failed to comply with the court’s order, including specifically identifying the documents that Defendant claims are privileged for the court to analyze, and given that Defendant has expressed that Defendant does not intend to make any additional filings, the court finds that Defendant has waived any privilege objections regarding communications with Lierow and must produce those documents to Plaintiff within 30 days.

The March 25, 2021 hearing is taken off calendar. No appearances are required.

Notice of ruling by Judgment Creditor.

Case Number: BC378888    Hearing Date: March 9, 2021    Dept: 73

3/9/2021

Dept. 73

Rafael Ongkeko, Judge presiding

C&M INVESTMENT GRP., LTD. v POWERS (BC378888)

Counsel for Creditor/moving party: Luke Dauchot, Lauren Schweitzer, Sable Hodson (Kirkland & Ellis)

Plaintiffs’ Amended motion To Extend lien pursuant to ccp § 708.110 (filed 1/25/2021)

TENTATIVE RULING

The unopposed motion is granted and the ORAP Lien is extended for one year up to and including March 18, 2022. Moving party judgment creditor has submitted a proposed order which the court intends to sign. No appearance is necessary.

Discussion

On January 17, 2012 the court entered judgment in favor of Plaintiffs and Judgment Creditors C&M Investment Group, Ltd. and Karlin Holdings, LP, and against, among others, Defendant and Judgment Debtor Phillip Richard Powers totaling $36,680,676.46, plus attorneys’ fees, costs, and interest relating to allegations surrounding violations of civil RICO, fraud, and breaches of contracts.

Since then, heavy post-judgment litigation has ensued, including multiple contempt orders against Powers. Judgment Creditors have still yet to collect.

On January 17, 2017 Judgment Creditor served Judgment Debtor with an Order to Appear for a Debtor’s Examination (“ORAP”), which created an ORAP lien on Powers’ assets. (Cal. Civ. Proc. Code § 708.110(d)). The court has twice extended that lien, which was previously set to expire on January 17, 2021. On December 18, 2020 Judgment Creditors moved to extend the lien by an additional year. Because the court’s first available hearing date was February 9, 2021, Judgment Creditors attempted to meet and confer with Judgment Debtor to stipulate to an earlier hearing, but Judgment Debtor did not respond. On January 5, 2021 Judgment Creditors filed an ex parte application for an order shortening time to hear the motion to extend the lien, which was granted. The court set the hearing on January 14, 2021, set the deadline to file an opposition to January 11, 2021, and set the deadline to file a reply to January 13, 2021. The court ordered the moving party to serve the Judgment Debtor by mail, e-mail, or personal service by 5:00 p.m. on January 5, 2021. No opposition or reply was filed relating to that motion.

On January 22, 2021 the court entered an order extending the lien for an additional sixty days—up to and including March 18, 2021, ordering Plaintiffs to make additional attempts at service on Powers. The order expressly stated that the extension was without prejudice to Plaintiffs’ filing a further motion to extend the ORAP lien.

On January 25, 2021 Plaintiffs filed an additional motion, requesting that the court extend the ORAP Lien for an additional year—up to and including March 18, 2022. No oppositions were filed. On March 2, 2021, Plaintiffs filed a reply, noting that no oppositions had been filed.

Analysis

California Code of Civil Procedure section 708.110(d) states:

(d) The judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 10 days before the date set for the examination. Service shall be made in the manner specified in Section 415.10.

The court finds that given the extensive history of Judgment Debtor’s obfuscation and evasion for the past near-decade (e.g., post-judgment discovery abuses, contempt trial and conviction, another contempt conviction, evidence of schemes to transfer assets to Costa Rica, and further discovery abuses), good cause exists to extend the lien. The court further finds that Plaintiffs have made reasonable attempts to provide Powers with notice by attempting personal service at the two addresses about which Powers testified (as of September 29, 2020) were his current mailing and residential addresses. Further, Plaintiffs have served the motion papers by mail and by e-mail to Powers. Finding that good cause exists, the motion is granted and the ORAP Lien is extended for one year up to and including March 18, 2022.

Notice of ruling by moving party.

Case Number: BC378888    Hearing Date: January 14, 2021    Dept: 73

1/14/2021

Dept. 73

Rafael Ongkeko, Judge presiding

C&M INVESTMENT GRP., LTD. v POWERS (BC378888)

Counsel for Judgment Creditor/moving party: Luke Dauchot, Lauren Schweitzer, Sable Hodson (Kirkland & Ellis)

Plaintiffs’ motion To Extend lien pursuant to ccp § 708.110 (filed 12/18/2020)

TENTATIVE RULING

Given the exigent circumstances and Judgment Debtor’s evasive history and given that Judgment Debtor, at the very least, received e-mail service, the court finds that good cause exists to extend the ORAP lien for 60 days without prejudice to Judgment Creditor’s filing another request to further extend the lien. In the meantime, Judgment Creditor is ordered to confirm Judgment Debtor’s new address and successfully personally serve Judgment Debtor with any new motion to extend the ORAP Lien.

Discussion

On January 17, 2012 the court entered judgment in favor of Plaintiffs and Judgment Creditors C&M Investment Group, Ltd. and Karlin Holdings, LP, and against, among others, Defendant and Judgment Debtor Phillip Richard Powers totaling $36,680,676.46, plus attorneys’ fees, costs, and interest relating to allegations surrounding violations of civil RICO, fraud, and breaches of contracts.

Since then, heavy post-judgment litigation has ensued, including multiple contempt orders against Powers. Judgment Creditors have still yet to collect.

On January 17, 2017, Judgment Creditor served Judgment Debtor with an Order to Appear for a Debtor’s Examination (“ORAP”), which created an ORAP lien on Powers’ assets. (Cal. Civ. Proc. Code § 708.110(d)). The court has twice extended that lien and it is now set to expire on January 17, 2021. On December 18, 2020, Judgment Creditors moved to extend the lien by an additional year. Because the court’s first available hearing date was February 9, 2021, Judgment Creditors attempted to meet/confer with Judgment Debtor to stipulate to an earlier hearing, but Judgment Debtor did not respond. On January 5, 2020, Judgment Creditors filed an ex parte application for an order shortening time to hear the motion to extend the lien, which was granted. The court set the hearing on January 14, 2021, set the deadline to file an opposition to January 11, 2021, and set the deadline to file a reply to January 13, 2021. The court ordered the moving party to serve the Judgment Debtor by mail, e-mail, and personal service by 5:00 p.m. on January 5, 2021. No opposition or reply was filed.

On January 8, 2021, Judgment Creditors filed a proof of service that shows that they served the Judgment Debtor by e-mail and U.S. mail at a 421 Manhattan Ave., Hermosa Beach address. On the same day, before 5 p.m., multiple personal attempts by a messenger service were made to personally serve Judgment Debtor in Hermosa Beach and Redondo Beach, including at the 421 Manhattan Ave address. All four attempts were unsuccessful. The declarations on those proofs of service show that a new tenant informed the process server that Judgment Debtor was the previous tenant and no longer resides at the 421 Manhattan Ave address. The other two addresses attempted were “bad addresses” according to the process server.

Analysis

California Code of Civil Procedure section 708.110(d) states:

(d) The judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 10 days before the date set for the examination. Service shall be made in the manner specified in Section 415.10.

The court finds that given the extensive history of Judgment Debtor’s obfuscation and evasion for the past near-decade (e.g., post-judgment discovery abuses, contempt trial and conviction, another contempt conviction, evidence of schemes to transfer assets to Costa Rica, and further discovery abuses), good cause exists to extend the lien. However, given that the process server’s statements suggest that Judgment Debtor no longer resides at the 421 Manhattan Ave. address, the court has notice concerns. That proof of service states “Per Mr Sidney Kimhan new tenant since September 25, 2020 states subject was the previous tenant he keeps on getting mail for him but returns it” [punctuation and grammar errors in original]. Those statements suggest that Judgment Debtor may have moved out in September 2020. Accordingly, both mail and personal service would not have necessarily provided Judgment Debtor with notice.

Given the exigent circumstances and Judgment Debtor’s evasive history and given that Judgment Debtor, at the very least, received e-mail service, the court finds that good cause exists to extend the ORAP lien for 60 days without prejudice to Judgment Creditor's filing another request to further extend the lien. In the meantime, Judgment Creditor is ordered to confirm Judgment Debtor’s new address and successfully personally serve Judgment Debtor with any new motion to extend the ORAP Lien.

Notice of ruling by moving party.

Case Number: BC378888    Hearing Date: January 07, 2021    Dept: 73

1/7/2021

Dept. 73

Rafael Ongkeko, Judge presiding

C&M INVESTMENT GRP., LTD. v POWERS (BC378888)

Counsel for Creditor/moving party: Luke Dauchot, Lauren Schweitzer, Sable Hodson (Kirkland & Ellis)

Counsel for Debtor/opposing party: Shelan Joseph (Deputy Public Defender)

Plaintiffs’ motion for relef from deficient privilege log (filed 12/09/2020)

TENTATIVE RULING

As discussed below, the court grants the motion as to certain categories, and sets further proceedings as to the Lierow documents.

Discussion

On January 17, 2012 the court entered judgment in favor of Plaintiffs C&M Investment Group, Ltd. and Karlin Holdings, LP, and against, among others, Defendant Phillip Richard Powers totaling $36,680,676.46, plus attorneys’ fees, costs, and interest relating to allegations surrounding violations of civil RICO, fraud, and breaches of contracts.

Since then, heavy post-judgment litigation has ensued, including multiple contempt orders against Powers.

The current motion stems from the court’s September 2018 order finding Powers in contempt and January 2019 order allowing Plaintiffs to collect and search Powers’ documents. (Mvg. Schweitzer Decl. Exs. 1 & 3). On May 14, 2019, in ruling on a motion for a protective order, the court detailed a procedure whereby documents that were responsive to Plaintiff’s searches would be sequestered and gradually released to Plaintiffs while Powers’ counsel reviewed them for privilege. (Id. Ex. 6) On April 27, 2020 Powers’ counsel provided a privilege log. (Id., Ex. 14). Plaintiffs argue that in reviewing the privilege log, certain documents do not appear to be privileged. (See, Id., Ex. 15 for a spreadsheet from Plaintiffs’ counsel identifying the documents that Plaintiffs contend do not appear to be privileged).

On December 9, 2020 Plaintiffs filed this motion, asking the court to deem that four categories of documents that Powers claims are privileged fall outside of the scope of privilege and should be disclosed to Plaintiffs. Those categories are:

On December 29, 2020 Defendant filed an opposition. On December 30, 2020 Plaintiffs filed a reply.

Analysis

  1. Standard re Burden of Proof

“The attorney-client privilege, set forth at Evidence Code section 954, confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer....]’” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725, 732). “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Id. at 733). “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply [Citations].” (Id.)

  1. Category 1: Communications with Third-Parties: GRANT.

A communication is confidential if it is “information transmitted between a client and his or her lawyer in the course of [the attorney-client] relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted....” (Cal. Evid. Code § 952.)  Generally, the “involvement of an unnecessary third person in attorney-client communications destroys confidentiality.” (Ins. Co. of N. Am. v. Superior Court (1980) 108 Cal. App. 3d 758, 765); see also Ver Bryck v. Luby (1945) 67 Cal. App. 2d 842, 844 (“[W]here a third party is present at a conversation between an attorney and a client, the privilege is waived and the communications are not confidential and privileged.”))

Defendant argues that privilege is not automatically waived where an attorney-client communication includes a third-party recipient. Defendant argues that these third-parties (who were included in e-mail communications between Defendant and his counsel) were Defendant’s spouse or daughter who were necessary parties and/or are interested parties in this proceeding. Defendant argues that it is not Defendant’s duty to disclose the role of these third-parties and that Plaintiff bears that burden.

Plaintiffs respond by arguing that having family members present does not render them within the scope of privilege. (See Marshall v. Marshall (1956) 140 Cal. App. 2d 475, 480 (finding no privilege where conversations with an attorney occurred in the presence of the client’s son); Manela v. Superior Court (2009) 177 Cal. App. 4th 1139, 1147 (finding physician patient privilege waived where child’s mother was present at the child’s father’s medical examination). Further, Plaintiffs argues that the communications in question also include non-family members, but Powers’ friends who have helped “evade Plaintiffs’ judgment in various ways over the last nearly-decade.” (Reply at 3).

The court finds that Defendant is incorrect that Plaintiffs bear the initial burden of proof. Defendant bears the initial burden of proof to establish sufficient facts to support a prima facie claim of privilege. Given that the purported communications were also made to third parties, on their face, that does not meet his prima facie burden that the communications were privileged. Defendant has not provided sufficient facts to establish that these third parties were necessary to further the interest of the client in relation to legal consultation and/or were reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.

  1. Category 2: Communications with Marianne Lierow: SEE APPENDIX.

Marianna Lierow is a Costa Rican attorney. Defendant contends that these communications are protected by the attorney-client communication privilege. Plaintiff argues that Lierow acts as Powers’ assistant and it is unclear whether any/all of these communications were within the scope of work as an attorney and/or as Powers’ assistant. In so arguing, Plaintiff offers testimony from Powers that Lierow sometimes served as Powers’ assistant and that Lierow handled numerous tasks that were unrelated to legal services. (Mvg. Schweitzer Decl., Exs. 17-21).

“[N]ot every communication between attorney and client is privileged solely because it is confidentially transmitted.” (L.A. Cty. Bd. of Supervisors v. Super. Ct. (2016) 2 Cal. 5th 282, 295). “In order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose.” (Id. at 297). “No attorney-client relationship arises for purposes of the privilege if a person consults an attorney for nonlegal services or advice[.]” Kerner v. Superior Court (2012) 206 Cal. App. 4th 84, 117). “It is settled that the attorney-client privilege is inapplicable where the attorney merely acts as a negotiator for the client, gives business advice or otherwise acts as a business agent.” (Chi. Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d 1142, 1151).

Here, the court finds that given that Lierow is a Costa Rican attorney and has provided legal services to Defendant, Defendant has met his prima facie burden of showing that these communications are privileged. However, the court also finds that Plaintiffs have met their burden of providing evidence to establish that these communications may not be confidential or that the privilege may not apply. More information, therefore, is needed before the court can determine whether or not these communications are privileged.[1] See APPENDIX below for further rulings on these communications.

  1. Category 3: Communications with Harvey Champlin: GRANT.

Plaintiff argues that communications with Harvey Champlin, a friend of Powers whose license to practice law has been since 1986 are not privileged. A special master in the underlying civil litigation already ruled that communications between Champlin and Powers without one of Powers’ actual attorneys present are not privileged because Champlin never acted as Powers’ attorney in this matter. (Mvg. Schweitzer Decl., Ex. 24). The Special Master further held that only certain categories of Powers’ communications with Champlin and Powers’ attorneys may be privileged: (i) communications between Champlin, Powers, and Powers’ attorneys made in connection with the JAMS mediation in the underlying civil case; and (ii) communications between Champlin, Powers, and Powers’ attorneys in which Champlin is acting as a conduit or intermediary between Powers and his attorneys for purposes of providing Powers with legal advice. (Mvg. Schweitzer Decl., Ex. 24).

Defendant contends that, at the time the communications took place, Defendant believed that Champlin was authorized to practice law and that Champlin was Defendant’s attorney. But Defendant offers no testimony or evidence to support this contention.

The court, therefore, adopts the Special Master’s findings. Forty-three of the emails in this category are between Champlin and Powers, but with no other attorney. The court finds that those e-mails are not privileged and must be produced. For the remaining 19 e-mails between Powers and his attorney(s), and of which Champlin was also a recipient, because these communications were not between Defendant and his attorney, Defendant fails to meet his prima facie burden.

  1. Category 4: Communications with Harold Wrobel and Wrobel’s Attorneys: GRANT.

Plaintiffs argue that Powers is withholding communications with Wrobel and/or Wrobel’s attorneys regarding the “exact transaction found to be fraudulent by this Court in the underlying contempt proceeding that led to the order compelling Powers to permit searches of his documents.” (Mvg. Schweitzer Decl. Exs. 2 at 45:15–49:17 & 3). Plaintiff argues that none of the attorneys on those communications ever represented Powers—rather they purported to represent Wrobel. (Id., Ex. 25). Further, Plaintiff argues that even assuming those attorneys represented Defendant, the communications are not privileged because they were sought to enable or aid fraud. (Cal. Evid. Code § 956).

Defendant argues that Plaintiff has offered no proof in their motion that a fraudulent real estate transaction took place to invoke the crime/fraud exception and, therefore, has not met its burden of showing fraud.

Notably missing, however, is Defendant’s ever contending that any of these attorneys, including Wrobel was Defendant’s attorney, let alone offer any evidence of that fact. As such, the court finds that Defendant has not met his prima facie burden.

APPENDIX (RE MARIANNE LIEROW DOCUMENTS)

To the extent that Defendant wishes to identify any specific communications and offer evidence/facts to the court (e.g., facts/evidence that show that the communications that Defendant identifies was necessary for legal consultation, etc., then the court orders as follows:

Ex. #

Control ID

Description/Subject of Doc

Privilege

Explanation

Grant

Deny

The court continues the hearing for 60 days as a non-appearance/submitted matter if Defendant takes the above action after this hearing.


[1]The court notes that, to the extent that Plaintiffs are claiming that communications are not privileged if an attorney transmits non-privileged information to a client. That is not always true. “The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco, supra, 47 Cal. 4th at 725). The test is whether or not that communication was part of a legal consultation.

Case Number: BC378888    Hearing Date: July 14, 2020    Dept: 73

7/14/2020

Dept. 73

Rafael Ongkeko, Judge presiding

C&M INVESTMENT GRP., LTD. v POWERS (BC378888)

Counsel for Creditor/moving party: Luke Dauchot, Lauren Schweitzer, Sable Hodson (Kirkland & Ellis)

Counsel for Debtor/opposing party: Self-represented

Post-judgment Motion to compel debtor to facilitate inspections (filed 04/02/2020)

TENTATIVE RULING

The court grants the motion. The opposition is untimely and is not considered.

A proposed Order was lodged and served on 4/2/2020.

Discussion

This court has already ordered Powers to facilitate the inspection of the eBay accounts and telephone numbers at issue. Despite Powers’ representations that he does not “own” these accounts/telephone numbers, Plaintiffs have established that Powers has the ability to obtain access to these accounts/telephone numbers.

· As for the telephone number: The telephone number originally belonged to Powers, but was transferred to a friend named Martin Becker in March of 2017. Indeed, the relationship between Powers and Becker was so close that Becker flew from Costa Rica to California to testify at Powers’ contempt trial.

· As for the eBay account: A 2018 listing for a Ferrari of the type that Powers dealt in directed respondents to call “Rick” (a shorthand nickname for Richard) at a phone number that was originally owned by Powers. This is sufficient circumstantial evidence to establish that the transfer of the telephone number in 2017 to Becker was in name only as “Rick” was still using it or accessing it in 2018.

So, while Powers may not necessarily legally “own” these accounts/numbers, the evidence sufficiently establishes that Powers still has access to these accounts/numbers and has the ability to direct his friends/agents to give access of these accounts/numbers to Plaintiffs. The court, therefore, grants the motion and orders Powers to facilitate the inspection of the Teak360 eBay account and any communications made using the 0524 Number that are responsive to Plaintiff’s request nos. 5, 6, 9, and 21-35.

Notice of ruling by moving party.

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