Bank of America, N.A. v. Superior Court
151 Cal. Rptr. 3d 526
Cal. Ct. App.2013Background
- Fidelity (title insurer) retained GKCJ to represent Bank of America (BofA) under a lender’s title policy; BofA was the insured.
- PCB issued subpoenas seeking documents including communications between GKCJ and Fidelity.
- Trial court ruled no attorney-client relationship existed because GKCJ prosecuted, not defended, the underlying case.
- Transnation title policy obligates defense and allows Fidelity to initiate/prosecute litigation to protect the insured’s title.
- Courts recognize a tripartite relationship where insurer, insured, and counsel share confidential communications.
- Petition for writ of mandate granted to protect the privilege and compel quashing/modifying subpoenas.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exists a tripartite attorney-client relationship? | Fidelity hired GKCJ to represent BofA; joint privilege. | No tripartite relation since GKCJ prosecutes, not defends. | Yes, tripartite exists; communications protected. |
| Effect of reservation of rights on the relationship? | Reservation of rights could create conflict necessitating Cumis. | Reservation of rights destroys tripartite protection. | Reservation of rights did not defeat the relationship. |
| Are communications between Fidelity, BofA, and GKCJ privileged/work product? | Communications are confidential under attorney-client privilege and work product. | Not necessary to protect because action prosecuted. | Protected as attorney-client privilege and work product. |
| Who may waive the privilege in this tripartite setup? | BofA, as joint client, can move to quash. | Fidelity not required to join; waiver by one is sufficient? | Privilege not waived; joint clients share protection. |
| Does the Transnation Policy extend to protect communications when insurer prosecutes? | Policy contemplates defense and prosecution to protect title; supports privilege. | Not distinguishing prosecution within policy terms. | Policy supports tripartite relationship and privilege protection. |
Key Cases Cited
- American Mut. Liab. Ins. Co. v. Superior Court, 38 Cal.App.3d 579 (Cal. Ct. App. 1974) (describes tripartite relationship and duties to insured)
- Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, 79 Cal.App.4th 114 (Cal. Ct. App. 2000) (insurer-defendant counsel has dual client duties)
- State Farm Mut. Auto. Ins. Co. v. Federal Ins. Co., 72 Cal.App.4th 1422 (Cal. Ct. App. 1999) (establishes confidentiality between insurer, insured, and attorney)
- Jarchow v. Transamerica Title Ins. Co., 48 Cal.App.3d 917 (Cal. Ct. App. 1975) (title insurer’s duties to defend/protect title are kindred and accessible)
- Coito v. Superior Court, 54 Cal.4th 480 (Cal. 2012) (in camera work product considerations; privilege scope)
- In re Imperial Corp. of America, 167 F.R.D. 447 (S.D. Cal. 1996) (federal analysis of Cumis-like issues in D&O context)