Opinion
A146481
12-27-2017
LAW OFFICES OF EMEZIEM & OTHERS, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF JUSTICE, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15763425)
Appellant Law Offices of Emeziem & Others appeals from certain portions of two orders, filed on June 9, 2015, and August 19, 2015, in which the trial court (1) directed that appellant law firm's client was required to comply with Penal Code section 1536.5 to obtain copies of documents which were seized in the execution of a search warrant; (2) ordered that respondent California Department of Justice (DOJ) was no longer restrained or enjoined from receiving, examining, copying, or otherwise utilizing the documents taken in the execution of the search warrant; and (3) denied appellant's request for attorney fees and costs in connection with its application challenging the execution of the search warrant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We set forth only those facts as are necessary to resolve this appeal. Additionally, to the extent the trial court did not expressly rule on a specific factual dispute between the parties, our rendition of the facts assumes the trial court impliedly resolved those conflicts in favor of respondent and against appellant. (Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 957, disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) "[E]ven when presented by declaration, 'if the evidence on the application is in conflict, we must interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order.' [Citation.]" (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.)
Bay Area Consortium for Quality Health Care (BAC) was the target of a criminal investigation by DOJ's Bureau of Medi-Cal Fraud and Elder Abuse. The investigation was for felony grand theft and felony billing fraud against government health care programs designed to assist the poor, the elderly, and those afflicted with HIV/AIDS. On March 6, 2015, the trial court (Hon. Patrick Zika) issued a search warrant for "Suite 300" at an Oakland location used by BAC. The search warrant authorized the search and seizure of "all records and documents" for a certain time period, including "financial records, medical records, computers and computer systems, hard drives, and personnel files."
On March 11, 2015, DOJ special agents executed the search warrant at Suite 300. The entire office suite was leased by BAC. However, when the agents arrived at the location they learned the leased space was compromised of several rooms, some of which were used by BAC, and some of which were subleased to appellant law firm. No employee of BAC was present. According to the agents, an employee of appellant law firm was present and informed them which areas belonged to BAC and appellant law firm. The agents were told the reception area desk was shared by BAC and appellant law firm. To the right of the reception area was a room identified as "the Conference Room/Library." Three offices to the left of the reception area were used by appellant law firm and "three areas to the right" of the offices of appellant law firm were used by BAC. The description of Suite 300, as recounted by the agents, was consistent with the description provided by Juliette Topacio Sarmiento, a friend and attorney colleague of appellant law firm's principal attorney Kelechi Charles Emeziem. In her declaration submitted to the trial court, Sarmiento described the layout of Suite 300 in the following manner: "[T]hree (3) rooms next to each other that were immediately visible from the door marked #300B: first room is [private office of Emeziem], second room next to . . . his office [is] machine room with a computer, printers and copiers, and the third room is occupied by one of his [a]ttorney associates." Additionally, Sarmiento stated that appellant law firm's receptionist "shares the reception desk that is on the other end of the room, directly inside the door marked #300A." Sarmiento was present on the day of the search, and she specifically informed the agents that BAC's "offices were after the first three (3) room[s] from the Doorway of #300B, part of the reception area, and the conference room at the very end of the office." Upon receiving the information regarding the use of the offices in Suite 300, the agents searched the areas designated as belonging to BAC (marking them as A, B, and C) and the shared reception area. Among the seized items, which are the subject of this appeal, were 12 boxes of paper documents consisting of BAC's business records. The documents were taken from the conference room designated as belonging to BAC.
Two weeks after the search, on March 23, 2015, appellant law firm filed a civil, ex parte petition seeking, in pertinent part, the return of the 12 boxes of BAC's business records, and an award of damages, attorney fees, and costs, in the aggregate sum of $5,050, "in the interests of justice." The application was supported by a declaration from Kelechi Charles Emeziem, appellant law firm's principal attorney. Emeziem averred that his client, BAC, had informed him that the agents had taken "several documents in my office conference." He further stated BAC had given the documents to appellant law firm to facilitate the law firm's representation of BAC in a pending lawsuit.
In executing the warrant, DOJ agents had inadvertently taken appellant law firm's computer, which was located in the shared reception area. As part of its ex parte application for relief, appellant law firm sought return of its computer and the computer hard drive, as well as copies of the computer hard drive that had been made by respondent. Pursuant to trial court orders, respondent returned appellant law firm's computer and the hard drive and destroyed any copies of the contents of the computer's hard drive that had been made by respondent.
On April 2, 2015, the trial court (Hon. Evelio Grillo) held a hearing on appellant law firm's ex parte motion. Appellant law firm's counsel informed the court that at the time of the search the law firm used three rooms and a conference room in Suite 300, appellant law firm had received possession of the 12 boxes of documents from its client BAC, and the documents were in the conference room when the agents took them pursuant to the search warrant. Appellant law firm's counsel offered to obtain a declaration from BAC confirming that the documents were under the custody and control of appellant law firm at the time of the search. Appellant law firm's counsel then argued the search and seizure was illegal because respondent's agents failed to comply with the statutory provisions governing law office searches (Pen. Code, § 1524, subdivision (c)), requiring a court-appointed special master to supervise the search. Appellant law firm's counsel contended that the appropriate remedy for the illegality was the return of BAC's original documents to appellant law firm. Respondent's counsel informed the court that when DOJ agents executed the search warrant, they were told which offices and rooms belonged to BAC, and they searched only those rooms and offices used by BAC, including "what [appellant law firm's] counsel is calling its conference room." Additionally, the agents seized BAC's business records, namely "medical records, personnel files and such," and not records of appellant law firm. Respondent's counsel then contended that because the seized documents belonged to BAC and were taken only from BAC's offices, the statute governing the search and seizure was Penal Code section 1536.5. That statute allowed respondent to retain possession of the original documents and required BAC, at its own expense, to pay for copies of the seized documents. When appellant law firm's counsel complained it would be a hardship to go to Sacramento to copy the documents, the court noted the documents belonged to BAC, which counsel did not dispute. Appellant law firm's counsel also agreed that BAC should be required to provide a letter, both explaining how the documents came into appellant law firm's possession, and authorizing the release of the documents to appellant law firm. After reviewing the parties' supplemental filings, and, considering counsel's arguments, Judge Grillo ruled, in pertinent part, that "[c]opies of the originals of any documents seized pursuant to the March 6, 2015 search warrant shall be made available to the appropriate party pursuant to Penal Code section 1536.5(b)(2)." The matter was transferred to Judge Zika for further proceedings and then continued several times.
On June 4, 2015, the matter was reconvened with Judge Zika presiding. At that time the court heard argument by counsel and considered additional papers filed by the parties. In its written order filed on June 9, 2015, the court granted appellant law firm the right to obtain copies of the 12 boxes of BAC's business records by complying with Penal Code section 1536.5, with the proviso that appellant "must support a demand for copies with a declaration, made under the penalty of perjury, from Bay Area Consortium, the entity from whom the records were seized pursuant to a search warrant," and appellant law firm could obtain the copies by "paying respondent to make the copies or following the procedure" as set forth in Penal Code section 1536.5, subdivision (b).
On August 19, 2015, Judge Zika held a hearing on respondent's motion for reconsideration and modification of the court's June 9, 2015 order regarding a problem unrelated to the seizure of the 12 boxes of documents belonging to BAC. Appellant law firm's counsel informed the court, at that time, that BAC had not pursued its right to copy the 12 boxes of documents because "the volume of the records made it financially impossible" to do so. At the conclusion of the hearing, the court denied appellant's request for costs and attorney fees. Appellant had cited no legal authority, and the court knew of none, which would permit the court to award costs and attorney fees. The court also denied appellant law firm's request for a continuance to allow counsel to submit legal authority in support of its request. The court found the necessary legal authority should have been submitted in the first instance with the ex parte motion papers. Appellant law firm's counsel replied, "Okay. Fair enough."
DISCUSSION
Appellant challenges the June 9, 2015 and August 19, 2015 orders, issued by Judge Zika, as well as Judge Grillo's earlier ruling on the matter, arguing that the trial court judges should have found that respondent's failure to comply with the statutory rules governing law office searches (Pen. Code, § 1524), rendered the search and seizure unlawful, and required, as a remedy, the return of the 12 boxes of BAC's business records that had been seized from "appellant's conference room." In support of its argument, appellant law firm asks us to consider certain comments made by Judge Zika. Specifically, at the August 19, 2015 hearing, Judge Zika indicated that, had he known BAC shared offices with a law firm, he would have appointed a special master to supervise the search. Appellant also argues this case is similar to those cases in which the courts have held Penal Code section 1524 applies to the issuance of warrants to search a lawyer's office to seize evidence of criminal activity purportedly committed by the lawyer. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 710; Klitzman, Klitzman & Gallagher v. Krut (3d Cir. 1984) 744 F.2d 955, 957.) For the reasons we now discuss, we conclude appellant law firm has not demonstrated any error in the trial court rulings under review.
It is not disputed that the issuance of the search warrant was based on probable cause to believe that evidence of BAC's wrongdoing would be found in Suite 300. (See United States v. Brien (1st Cir. 1980) 617 F.2d 299, 309.) Contrary to appellant law firm's contention, the record supports the rulings of Judge Grillo and Judge Zika, which reflect their findings that DOJ agents, pursuant to a valid search warrant, seized 12 boxes containing BAC's business records that were taken from an area in Suite 300 designated as belonging to BAC. During the hearings held in the trial court, appellant law firm's counsel repeatedly confirmed that the 12 boxes contained BAC's business records, and not records of appellant law firm. Additionally, while appellant law firm's principal attorney asserted in the trial court that the 12 boxes had been taken from the law firm's "conference room," the record contains evidence from persons present during the search from which the trial court judges could find that the conference room belonged to BAC, and not appellant law firm. "Even though contrary findings could have been made," as an appellate court we "defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court's ruling is based on oral testimony or declarations." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) Once the trial court judges found the 12 boxes contained BAC's business records that were taken from an area that belonged to BAC, there was no need for the appointment of a special master to evaluate the nature of the seized documents and no reason to prohibit respondent's access to the documents. We therefore see no merit to appellant law firm's argument that the trial court judges should have found the 12 boxes containing BAC's business records were seized during an unlawful search of appellant law firm's office. In all events, even assuming appellant law firm shared the conference room with BAC and BAC had placed its business records in the conference room for use by appellant law firm, no different outcome would result. (See, e.g., National City Trading Corp. v. United States (S.D.N.Y. 1980) 487 F. Supp. 1332, 1336, affd. (2d Cir. 1980) 635 F.2d 1020, 1026 ["a criminal enterprise does not exempt itself from a search warrant by conducting its business and keeping its records in its lawyer's office"]; People v. Lee (1970) 3 Cal.App.3d 514, 526 [client's delivery of evidence to attorney may be privileged, but the evidence itself "does not become privileged merely by reason of its transmission to the attorney"].) " '[C]ourts commonly require lawyers to make voluntary disclosure with respect to the fruits, instrumentalities, and physical evidence of their clients' crimes. [¶] The cases asserting this duty all begin with the premise that a lawyer may not actively participate in hiding an item and may not take possession of it in such a way that its discovery by the authorities becomes less likely. . . . ¶] . . . Not only must a lawyer not make the police officer's job tougher, statutory prohibitions against destroying, altering, or concealing evidence mean that a lawyer must in effect make the police officer's job easier, by voluntarily turning over physical evidence that has come into the possession of the lawyer.' [Citations.]" (Alhambra Police Officers Assn. v. City of Alhambra Police Dept. (2003) 113 Cal.App.4th 1413, 1423.)
Appellant law firm also challenges the trial court's denial of its request for costs and attorney fees in connection with its ex parte motion. According to appellant, pursuant to Code of Civil Procedure sections 1032 and 1033.5, and "No. 5 of the Appendix B of the Alameda Local Rules Guideline for Attorney Fees," the trial court was required to exercise its discretion to award costs to appellant law firm as the prevailing party, and to award attorney fees as an element of damages, because appellant law firm was forced to file an application to recover its own property. However, appellant law firm never asked the trial court to make a prevailing party determination or to otherwise exercise its discretion pursuant to the cited statutory authority. Accordingly, the argument is not preserved for our review and we see no reason to further address the issue. (See Planned Protective Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, 12-13 [reviewing court refuses to address appellant's argument concerning applicability of attorney fee statute when the parties did not brief statute's applicability in the trial court and the trial court's attention was not directed to the statute].) Appellant law firm also contends the trial court "abdicated" its duty to determine whether the request for costs and attorney fees was warranted "by simply stating" that appellant law firm failed to cite any legal authority and as such the court could not grant the request. According to appellant law firm, "[t]he trial judge had the option of asking the parties to brief the issue to give him more information including citations to help him decide if he [would] grant or deny" the requested relief. Appellant law firm then argues the trial court committed "reversible error" by failing to ask for the additional information. However, appellant law firm cites no legal authority to support its contention of trial court "reversible error." Accordingly, the argument is waived and we see no reason to further address the issue. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [reviewing court may treat argument as waived where appellate brief fails to provide legal authority for position taken].)
Planned Protective Services, Inc. v. Gorton was disapproved in part on another ground in Martin v. Szeto (2004) 32 Cal.4th 445, 451, fn. 7.) --------
DISPOSITION
The orders, filed on June 9, 2015, and August 19, 2015, are affirmed. Respondent is awarded costs on this appeal.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.