May 10, 2024

Byers v. Superior Court of Contra Costa County (2024)

In this insurance coverage and bad faith action, plaintiffs sought attorney fees as damages under the authority of Brandt v. Superior Court (1985) 37 Cal.3d 813.  The defendant insurer served document production requests seeking the fee agreements plaintiffs had with their counsel and any attorney billing records and proofs of payment.  Plaintiffs refused to produce any such documents, asserting they were privileged.  On the insurer’s motion to compel, the trial court ruled the documents had to be produced, although plaintiffs could redact work product.  

The Court of Appeal (First Dist., Div. Five) affirmed the discovery order.  Plaintiffs’ “admission that they are seeking Brandt fees as an element of their damages is an implied waiver of the attorney–client privilege at least as to the attorney fees documents that the [plaintiffs] plan to rely upon to seek to prove the amount of fees they reasonably incurred to establish their right to benefits under [the] insurance policy.”  Plaintiffs “put at issue the attorney fees they incurred in an effort to seek coverage under their insurance policy, and disclosure of documents supporting their claim for such fees is necessary to fairly adjudicate the issue of damages.”