United States: Is The Immediate Duty To Defend Gone? California Court Of Appeal Holds That Attorney Invoices In Ongoing Litigation Are Privileged, Although Privilege Can "Expire" Upon Conclusion Of The Case

Parties involved in California construction defect lawsuits over the past nine years are familiar with the following scenario: A developer/general contractor moves for summary adjudication of the contractual duty to defend owed by one or more subcontractors. Pursuant to the Crawford decision, the court grants the motion and finds that, as a matter of law, the subcontractor(s) have an immediate and ongoing duty to defend the developer/general contractor. (Crawford v. Weather Shield (2008) 44 Cal.4th 541) As discussed in a companion article in this newsletter, in Crawford, the California Supreme Court held that a contractual indemnitor must immediately assume an indemnitee's defense, irrespective of whether it is determined that indemnity is actually owed. In our scenario, a developer/general contractor, having prevailed in its motion, then demands immediate payment of its ongoing defense fees and costs. In response, however, the subcontractor(s) demand that the developer/general contractor produce copies of its legal invoices, so that the amount of fees incurred in defending the plaintiff's claim can be determined and so that a reasonable allocation of those fees can be calculated, and the portion of the total which must be paid by a particular subcontractor determined. In response, the developer/general contractor either refuses to produce the invoices, citing privilege, or produces invoices which are so heavily redacted as to make them useless for the purpose of calculating an allocation. In so doing, the developer asserts that the invoices are attorney-client communications which are privileged and not subject to disclosure, pursuant to California Evidence Code Section 952.

In our experience, many judges have sided with subcontractors who argue that, in demanding immediate and ongoing payment for legal invoices, the developer/general contractor has placed the content of its bills in issue in the case and rendered them subject to disclosure. Although California judges have been left to determine how to resolve the dispute over production of legal invoices in an ongoing matter, anecdotal evidence suggests that that they have generally required produced of invoices by counsel for developer/general contractors with limited portions redacted, if immediate and ongoing payments from the subcontractors are desired. A recent decision by the California Supreme Court directly effects this scenario and is already having an impact on construction defect lawsuits.

In L.A. County Board of Supervisors v. Superior Court (2016) _ Cal.5th _ , the California Supreme Court reversed the judgment of the Court of Appeal holding that attorney invoices sent by outside counsel to a public agency were categorically privileged and therefore exempt from disclosure under the California Public Records Act (PRA; Government Code, section 6250 et seq.). The California Supreme Court ruled that the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure, but that invoices for work in pending and active legal matters are protected by the privilege, because they are closely related to attorney-client communications. Underlying the decision were allegations of excessive use of force in the Los Angeles County jail system, which lead to several lawsuits. The County employed outside counsel in defending the lawsuits. The ACLU requested production of the legal invoices generated by counsel, pursuant to a PRA request, to evaluate the nature and extent of the problem. The County willingly produced invoices for three matters which had been resolved, but withheld production of invoices for six more, which were ongoing. A divided Supreme Court ultimately concluded that the attorney-client privileged is limited and that invoices which are deemed privileged while a case is pending may lose that status and be subject to production post-dismissal, but that while an action is pending, an attorney's invoices, to the extent they are conveyed "for the purposes of legal representation," including the disclosure of the timing and amount of time spent on a particular issue or task, contain information which lies directly in the "heartland" of the attorney-client privilege.

Subcontractors can assert that the Los Angeles County Board decision is distinguishable from the construction defect scenario, because it involves a public records request by a third party to the ongoing litigation and because the party asserting the privilege did not place the invoices in issue by demanding payment of the billed amounts, however, it has been our experience so far that Superior Court judges are interpreting the Supreme Court's holding to apply to the production of attorney invoices in any ongoing matter, and to preclude the production of those invoices. As a practical matter, this effectively requires a second proceeding following conclusion of the construction defect litigation, during which the invoices may be produced and examined and an appropriate allocation of the developer/general contractor's invoices calculated.

A developer/general contractor can elect to waive the privilege and to produced invoices with limited redactions, so that the entire matter can be resolved at mediation or settlement conference while the construction defect lawsuit is pending. Absent such waiver, however, the amount of legal fees and costs owed by subcontractors, including potentially those found to have no liability to the developer in the underlying case, will need to be determined in a second proceeding which follows settlement or trial of the main action. Where the privilege is not waived, all parties to a defect case who entered into a subcontract which includes a contractual defense obligation, save for those with a carrier which is defending the developer as an additional insured, are subject to participation in a post-trial or post-settlement proceeding to determine their obligation to contribute to the developer's defense expenses.

The manner in which the Los Angeles County Board decision is interpreted and applied by judges in California construction defect matters will directly impact construction defect cases for the foreseeable future and may result in further relevant opinions by Courts of Appeal or the Supreme Court. Should any relevant new decisions be issued, we will report on them in future editions of this newsletter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.