Monday, November 21, 2016

A Writ Lesson, of Sorts

Agric. Relations Bd. v. Superior Court, No. C08373 (D3 Oct. 25, 2016)

This is a writ taken from an administrative proceeding addressed to a question of governmental attorney client privilege. But before we get there, there’s a question of writ procedure.

In response to the agency’s verified writ petition, the Court of Appeal issued an order to show cause. The real party filed a “response”—an unsworn brief that made legal arguments in opposition to the issuance of a writ. Which would be how it would work in a ordinary appeal. 

But a writ isn’t exactly like an appeal. It is technically-speaking, an original proceeding. So in addition to a brief, a writ petition—which needs to be verifiedmakes factual allegations. See Cal. R. Ct. 8.486(a), (b). And if the court issues an OSC, the real party is required to file a “return,” which can be by way of a demurrer, verified answer, or both. See Cal. R. Ct. 8.487(b)(1). As with trial court pleadings, a demurrer accepts the factual allegations as true, contesting their legal adequacy, while an answer contests fact issues. While the real party’s mistake could have led to a default, the court gives them a break and decides not to impose that as a sanction. Instead, it treats the “response” as a demurrer—admitting that the fact allegations in the writ petition were true.*

So far as the privilege issue goes, the court holds that an attorney-client relationship exists between the Agricultural Labor Relations Board (which both prosecutes and adjudicates claims of unfair labor practices in the agriculture industry) and its general counsel, such that discussions between the Board and the GC with respect to whether the GC can proceed with an action to obtain injunctive relief are covered by the attorney-client privilege.

Writ granted.

*Perhaps the confusion here is that the agency involved is the Agricultural Relations Board. There is a separate Rule of Court dealing with ARB writs. See Cal. R. Ct. 8.498. Because a writ taken against the ARB is basically an admin law appeal, the record process is somewhat different. See Cal. R. Ct. 8.498(b) (requiring the Board to file and serve the administrative record). And in response to a petition, the Rule requires the Board—invariably the respondent in that kind of appeal—to file a respondent’s brief. Cal. R. Ct. 8.498(c)(2). 

Since this case entails the Board taking a writ from a superior court’s evidentiary ruling, it seems that the Court of Appeal believes the ordinary writ procedures in 8.486 and 8.487 apply. Which makes sense, although the opinion doesn’t really make that clear.

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