board refused, claiming privilege. Gerawan brought a writ proceeding in Sacramento County Superior Court seeking to force the board to disclose the requested communications, and the court ordered disclosure. The board brought the present writ proceeding in this court to challenge the superior court’s ruling.

For the reasons set forth hereafter, we conclude the superior court erred in ordering disclosure of the communications between the board and general counsel relating to the decision to seek injunctive relief against Gerawan because those communications are protected by the attorney-client privilege. As we will explain, even if due process concerns with respect to the pending administrative proceeding against Gerawan are raised by the communications at issue, those concerns do not preclude the attorney-client privilege from attaching to those communications, and because the communications are privileged, they are exempt from disclosure under the Public Records Act. Accordingly, we will direct that a writ of mandate issue ordering the superior court to vacate its order requiring disclosure of those communications and enter a new order denying Gerawan’s request for disclosure.”

The decision also provides guidance on how to respond to an alternative writ or order to show cause.  “If the court issues an alternative writ or order to show cause, the respondent or any real party in interest, separately or jointly, may serve and file a return by demurrer, verified answer, or both.” (Cal. Rules of Court, rule 8.487(b)(1); see also Code Civ. Proc., § 1089 [when the court issues an alternative writ, “the party on whom the writ … has been served may make a return by demurrer, verified answer or both”].) … The submission of “a return with a verified answer or demurrer is not a technicality, but is an integral and critical step in the procedure for determining the merit of a petition for extraordinary relief.” (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1085, 151 Cal.Rptr.3d 526.) One possible consequence of filing a return that contains neither a demurrer nor a verified answer is that the return will be stricken and not considered in determining the merits of the mandate petition. (See Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1287, 2 Cal.Rptr.3d 484.).”

Paul M. Starkey, Sacramento, and Todd M. Ratshin for Petitioner.

None for Respondent.

Irell & Manella, Los Angeles, and David A. Schwarz; Barsamian & Mood, Fresno, and Ronald H. Barsamian; Michael P. Mallery for Real Party in Interest.

Third District, 10/25/16 decision by Robie, Nicholson and Hoch concurring; ___ Cal.Rptr.3d ___, 2016 WL 6236427.

first proposed that we pursue a ban on choice of law/choice of forum clauses in a 2006 email whose subject line was, literally, “There Oughta Be a Law. . .”

 

David Lowe, who at the time was a CELA Legislative Committee co-chair, took the lead in drafting the bill and in shopping for a legislative author. David successfully pitched the bill to then-Asm. Sandre Swanson and, in the process, made a fateful (for CELA) connection to an up-and-coming legislative staffer named Mariko Yoshihara.

Though we did not yet have any staff in Sacramento, in true CELA style, a core group of committed volunteers pulled off CELA’s first Lobby Day in May 2007. We introduced CELA to scores of legislators and staffers and built on relationships that many CELA members already had with allies like CAOC and Labor.

In 2007, CELA was able to get the choice-of law/choice-of-forum bill through both houses of the legislature. Unfortunately, that first effort met its end when Gov. Schwarzenegger used his veto pen.  CELA regrouped and went a second round in 2009, when Mariko’s new boss, Asm. Felipe Fuentes, agreed to carry the bill.  Once again, the bill made it to Governor Schwarzenegger’s desk but no further.

By 2011, CELA’s political evolution had taken some giant steps forward. Notably, Mariko Yoshihara had come on board as our newly-minted Policy Director. Added to that big step, more and more CELA members were participating in our Legislative Committee and the committee was fast developing a robust and engaged process to vet bill ideas and recommend a legislative agenda for board approval each year.

Hoping that the third time would be the charm, CELA approached Asm. Swanson to carry the bill again in 2011. We knew it would be a tough push in the economic climate of that year, but as CELA members fanned out to speak to legislators during our fifth Lobby Day, we also knew that CELA was becoming an increasingly well-known and respected advocate for workers in Sacramento.  After Governor Brown vetoed the bill that year, we focused on the long game.  David Lowe and Scot Bernstein never have flagged in their commitment to see this bill through.

All our years of raising CELA’s visibility paid off this year, when Senator Bob Wieckowski came to us to say that he wanted an organizational partner in bringing a choice-of-law/choice-of-forum bill.  As a former plaintiffs’ attorney himself, Sen. Wieckowski was disturbed to see the proliferation of these clauses, particularly in consumer agreements.  We worked together to draft language to curb these clauses in both consumer and employment agreements. With that, the bill was reintroduced for the fourth time.

Thanks to key efforts by Scot Bernstein, we even succeeded in persuading Small Business California, an organization representing more than 5,000 small employers in California, to support the bill because of the unfair advantage that choice-of-law and choice-of-forum clauses give to large out-of-state corporations.  This drove a critical wedge between small and large employers and helped deflate much of the Chamber’s opposition.

Unfortunately, we ultimately were forced to remove the consumer portion of the bill near the very end of the legislative session because of tough political resistance coming from the Chamber and the banking industry.  The final version of the bill, which ultimately was signed by the Governor, ended up looking very much like the original version from ten years earlier.

As you can see, this ten-year history of pursuing this legislative change also describes CELA’s evolution in Sacramento.  Our legislative presence began as a volunteer effort by dedicated CELA leaders like Steve Pingel and Cliff Palefsky, who traveled regularly to Sacramento for decades to build relationships with key legislators and press the case for workers’ rights. CELA’s work to make good laws and fight bad ones is now spearheaded by our Policy Director and backed by a robust committee that is dedicated year-round to developing and pursuing the bills that will protect workers and advance their rights.

We should all be proud that CELA has attained its place in the California Capitol.

As we continue to tackle tough issues like forced arbitration, we need to remember that we are in it to win it for the long game.  Our bill to stop unethical practices in arbitration may not have succeeded this year, but that will not stop us from continuing to attack the danger of forced arbitration on all fronts in the years to come. We will continue to prove that there’s no quit in us!

Si se puede!