Melendrez v. Superior Court
156 Cal. Rptr. 3d 335
Cal. Ct. App.2013Background
- SECO filed for Chapter 11 and became a shell to process asbestos claims; insurers defense of SECO was arranged under the reorganization plan.
- Melendrez, as wrongful death plaintiff, served RFAs seeking admissions that would yield judgment against SECO; responses were signed by counsel but unverified.
- Trial court deemed SECO’s verified responses due to lack of officers/directors to verify, despite authorities that an attorney may verify as agent of a corporate party, with a limited waiver of privileges.
- Question presented: who may verify discovery responses and who holds SECO’s attorney-client/work-product privileges when SECO no longer has officers or existence beyond winding up.
- SECO was administratively dissolved during the writ proceeding; the court remanded to determine whether SECO remains in existence or whether the privilege passes to insurers as SECO’s de facto assignees.
- The court ultimately grants the writ and remands for further proceedings to determine the proper holder of SECO’s privilege and whether a director could be elected or appointed, or whether insurers hold the privilege and may waive it for the limited purpose of verifying discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who may verify discovery responses for a dissolved corporation. | Melendrez contends a living officer/agent must verify. | SECO argues there is no officer/director to verify and verifies cannot waive privilege. | Remand to determine existence/privilege holder; may require new director or insurers hold privilege. |
| Effect of attorney verification on attorney-client/work-product privileges. | Verification serves as witness for sources; waiver occurs. | Attorney verification triggers limited waiver; no officer to waive privilege. | Attorney can verify as corporate agent; limited waiver applies to sources of information. |
| Who holds SECO’s attorney-client privilege when SECO is no longer in existence? | Privilege should pass to insurer(s) as assignees. | Privilege remains with SECO until windup complete. | If no living management, insurers may hold privilege; remand to identify holder. |
| What should the court do on remand if SECO is still in existence or not? | If exists, direct election/appointment of director to waive privilege. | If not, insurers hold privilege and decide waivers limited to verification. | Remand for determinations on existence and privilege holder, and limited waiver for verification. |
Key Cases Cited
- Brigante v. Huang, 20 Cal.App.4th 1569 (Cal. App. 1993) (attorney cannot verify on behalf of individual party)
- Allen-Pacific, Ltd. v. Superior Court, 57 Cal.App.4th 1546 (Cal. App. 1997) (unverified responses equivalent to no response; need verification)
- Appleton v. Superior Court, 206 Cal.App.3d 632 (Cal. App. 1988) (unverified responses and discovery practice)
- Coito v. Superior Court, 54 Cal.4th 480 (Cal. 2012) (identity of witnesses/work product privilege access considerations)
- Favila v. Katten Muchin Rosenman LLP, 188 Cal.App.4th 189 (Cal. App. 2010) (privilege holder during windup; dissolved corporation context)
- Reilly v. Greenwald & Hoffman, LLP, 196 Cal.App.4th 891 (Cal. App. 2011) (windup понимание; successor may hold privilege)
- Venture Law Group v. Superior Court, 118 Cal.App.4th 96 (Cal. App. 2004) (insurer-privilege issues; merger scenario uitzondering)
- State Farm Fire & Casualty Co. v. Superior Court, 216 Cal.App.3d 1222 (Cal. App. 1989) (duty of good faith; privilege transfer context)