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Is this information privileged?

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Lad

Member
What is the name of your state? CA
I am filing a breach of K claim. My vehicle was traded by me, and then work was not done. I filed a request with the DMV on the vehicle (snowmobile) and found that it was still in the party’s name I had given it to, but he had submitted a release on liability on the snowmobile. From that, I found a party’s name on a DMV doc where you may request vehicle info. She was not listed anywhere, I googled her name and after days of research found out she is an attorney here in CA. Her story is: the guy I gave it to (he put an ad in the paper for the vehicle and trailer for 4500) traded it for some type of bike, motorcycle, whatever. Then, that person, Sally, is selling it or has sold it to the person whose name is on the release of liability.
I need the info on Sally – whether it is a barter, paid for, whatever because SHE dealt with the party I am suing. The attorney said Sally is one of her former clients and giving me her last name or any info is privileged. She seems reluctant to even contact the other person – asking what info I hoped to glean from her. I explained I need to prove up the original sales transaction in court, not the sale to her. I’ve asked her to have Sally contract me to no avail.
Question - Is this info that the Attorney has on her former client privileged? Her last name or contact number? My request doesn’t relate to the transaction between the two of them – is the attorney prevented from disclosing any of Sally’s info? Can I send the attorney a letter and ask her to forward it? It all sounds very fishy to me, I’ve asked her a few times – she’s said she’ll call her, whatever…the atty’s name remains on the title as released to (she says her son has the snowmobile).
Any ideas of HOW to get this info other than subpoenaing the party I gave it to? I don’t want him to know I know of the transaction before court because he claims he sold it in March for $1100 at a loss – I am trying to prove fraud, misrep.
Thanks
 


tranquility

Senior Member
"Privilege" is a specific term where you do not give anywhere enough information to determine if there is a privilege or not. Besides, such issues are evidentiary and not related to what you are asking.

An attorney has an ethical duty to protect client confidentiality. Even the name could, under certain circumstances, be included here. But, why would he tell you anything? Even if he were not prevented from telling you does not mean he must tell you anything.

Your facts about what you are trying to prove and your strategy for proving it is near incomprehensible. I can't even begin to understand how you were hurt as yet.

As a final note, the only way you are going to *make* a person tell you something is through a court order. File suit, start discovery, try to discover, meet and confer about the refusal, make a motion to compel and then win the motion to compel. Only then are you going to make the attorney talk.
 

Lad

Member
Maybe I can better express my issue

Dear tranquility...You stated
"Besides, such issues are evidentiary and not related to what you are asking.” - Not sure what you mean here, sorry. I am asking if she can use atty/client privilege to hide behind to not reveal the name of this person. I realize she can DO whatever she wants regardless of the law, but if it is not privileged, I might be able to subpoena her for docs or as a witness. I just need this former client of the atty; she is the first party D bartered with. I need to substantiate the D did not sell it for $1100 as he claimed. I’ve been hoodwinked. He traded the snowmobile for a 4 or 5 thousand dollar motor bike.

You stated - "But, why would he (she, actually is the atty) tell you anything? Even if he were not prevented from telling you does not mean he must tell you anything."
I know she doesn't HAVE to; I still need info on the first person this was sold to/bartered for. That is the best evidence for my complaint on court. The atty then bought it from the person who originally got it from D. Thought the attorney might realize D was a schmuck and help me out - especially when the atty’s son found the D had been negligent - water or something in the vehicle - and threatened to sue. I figured she knew what I was going through, and might WANT to help.

Sorry about the long facts. I will try again.
1. I sold it/bartered it to D (snowmobile). Oral agreement for 3K or deck work, no signed K.
2. D never paid me any $ and the work on my deck was above his talents. He had told me “I am a contractor.” When he realized he had no clue what he was doing, he said he’d
just pay me the money. Tried for months to get a hold of him.
3. Finally replied to me in 4/2006. Went to collect from D, he said sold for $1100, and wanted to split the loss - I get half of the original oral K, 1500. Said I sold it wrecked. Have since talked with shop where he had it worked on, this is a lie; he simply souped it up and bought aesthetic stuff for it.
4. Find out through tons of research that he lied. It was in fine condition when I sold it - he even had it inspected. Also, found AFTER I spoke with him, he turned in release of liability with atty’s name. She said HER name should not be on it.
6. D Claims lost job, needed money, sold it to someone else in Feb/March for $1100. This is a 4-5K snowmobile. Found his November Sac Bee ad for $4500, and I quote him ad “never been wrecked”.

Now, finally, for my questions:
I am trying to rescind the written contract for 1500 based on fraud and misrepresentation. D cries poor, said he said he was going to lose his house – he has no job, etc….He threatened to declare bankruptcy, so I thought this might be the only way to get any money from him. My oral K was for $3000. I agreed to $1500 - $100 per month. Still, he won’t pay. Afterwards, I found out all his lies…New car, new camper, and new motorcycle - he lied to me. I am trying to prove fraud in formation to get the $1500 contract rescinded and get my 3000 plus damages for tort as well.

Why? I decided to check up on his story. Going through microfiche at the Sac library, I see the item was advertised for $4500 , and "never been wrecked" in Nov. I am trying to find this person's name so I can ask her for a declaration or affidavit to bring to small claims court - I can't use discovery, there is none in small claims, neither are there requests for admissions or anything. So far as a motion to compel, I can subpoena only - docs or the actual person. I can’t find this party, and I need her to prove he lied, misled, me etc.
I want rescission, damages, both restitution and exemplary (fraud, misrep).
Sorry if I am not clear…I just don’t see what’s up with the attorney. As I said, I asked her to contact the woman who bought it from my defendant and ask her to call me – the attorney asked what info I expected to get from this person – thought that was obvious -evidence for me to use in court that the D defrauded me, lied to me that it was wrecked. D got 4500 worth of bike for it. Etc.

I am just frustrated, which makes me verbose, unclear. Sorry. Not much help on line or even from atty’s regarding small claims actions – I’ve read the civil procedure on it, but still not clear.
If I subpoena this secondary owner as witness – the atty who claims she got the snowmobile from her friend (who got it from D) for the atty’s son – can she quash – do I have sufficient reason to compel her testimony ( and that goes back to privilege….where this all started)
Thanks for the response, and if this clears it up more, perhaps you have more or different advice from me. I need to know where I stand in respect to evidence I will be able to collect before trial so that I can understand my bargaining position, both for the demand letter, and the small claims action.
Hope this was clearer. Thanks very much for your time.
 

tranquility

Senior Member
I think I understand a little better.

You are not going to get the attorney to talk anywhere other than on the stand. He will not talk on the stand and it is unlikely the judge will instruct him to answer. I think you are pumping a dry well here.

I still don't get your theory of the case. You must simplify it, even though the events are complex. My understanding with a brief discussion is:

1. You made a contract with his consideration of $3k or deckwork and yours the vehicle.
2. He attempted to fullfill by deckwork but found his skills wanting. He agreed to a modification of money only when he didn't ,or couldn't, perform deckwork. I'm not sure I see the consideration for this modification to make it binding.
3. You claim a breach when not enough deckwork and no money. Was the amount of deckwork specified? Was the time deckwork or money exchange be completed put in the contract? If not, a reasonable time. Months seem reasonable. There may be a breach here. The remedy can be damages or recission. However, since vehicle has been resold, recission is unlikely. (If bona fide purchaser for value, that remedy is impossible.) His defense is you misrepresented the vehicle. (i.e. *You* committed "fraud".)
4. You agreed to a modification to reduce the amount owed for vehicle. He already had to pay for vehicle. Unless the time is moved, or the other party gave something up or did something he didn't already have to, the modification is not valid as there was no consideration and neither of you seems a merchant. The original contract probably stands.
5. Absent facts to change things, since the modifications fail, the original contract is the agreement. All talk of his lies and whatnot are irrelevant.

If the vehicle is sold, you are probably not going to get it back. If sold to a bona fide purchaser for value, it's gone. Forget about any tort. Sue for the contract. Hope for $3,000 less the value of the work and any money he's paid. Your remedy is the value of the deal.
 

Lad

Member
ALmost there

1. First K was oral -3000, but he wanted to barter
2. Barter K illegal because he is unlicensed contractor - we agreed he do all the work on the pest control report.
3. No consideration for K, but under UCC, thought didn't need consideration. Good faith? So under my theory of the deck work being illegal K, we go back to the oral K for 3000 which satisfies SOF to extent of acceptance of goods, which he did.
4. I want to sue for the fraud and misrep because it is the only way to explain why I agreed to reduce the K to writing in 4/2006 for half the price. Rescission (not replevin, I don’t want to recover the goods) based on misrep and fraud. I need those as a basis to rescind. Also, the additional money damages would be nice to have - the judge may grant punitive if I prove tort as well. There's a lot I am not going into, but this guy was a real piece of you know what. Punitive damages are warranted. Without going into gory detail, not only punitive for fraud, but under Civil Code 1780:
(a) Any consumer who suffers any damage as a result of the
use or employment by any person of a method, act, or practice
declared to be unlawful by Section 1770 may bring an action against
that person to recover or obtain any of the following: etc...$5K in damages.
Believe me, he deserve to pay this for taking advantage of me.

As long as I've done all this work, I want all I can get. Without the fraud and misrep (That's why I need to talk to the new owner), I don't make it to tort damages, and may get stuck with 1500 for a 5K item. If that is all I can get, then so be it, but I want to try to settle this in a way that is fair for me and I have enough evidence to prove his fraud and misrep.
you said "You are not going to get the attorney to talk anywhere other than on the stand. He will not talk on the stand and it is unlikely the judge will instruct him to answer. I think you are pumping a dry well here"
I can subpoena the attorney to tell what she knows without naming the first purchaser, or I can request she provide me with an affidavit, omitting the name.maybe the judge would consider this??
No one wants to be subpoenaed and she lives 3 hours away, so I know she'll try to quash it...also, an unhappy witness is not a good witness.
Thank you
 

tranquility

Senior Member
The "barter" contract was not "illegal". If the licensed contractor laws are invoked from your deal, the result is that *he* can't enforce it in the court.

I blew right by the statute of frauds issue for the goods over $500. (That's why paragraph spaces are good. It gives the mind a chance to look at each thing written.)However, I agree that delivery was accepted *and* there was partial payment (by the work on the deck) so you have a defense if he claims it.

There was consideration for the original contract. As I said in my prior post, that is the contact you have. (Baring any consideration on his part in any of the attempted modifications.)

What is the fraud? What is the misrepresention? Or, more importantly in this case, *when* are they? What are your damages from the alleged fraud or misrepresentation?

Rescission is a difficult term as it has many meanings. The UCC envisions a different meaning from common law and is different from the way attorneys usually use it. What do you mean by rescission? I was thinking you meant eliminate the contract and put the parties back where you were. Replevin is a tort, not a contract, remedy.

Your reference to the civil code is not convincing. I'm not arguing with you as you say you have many additional facts, but on the ones posted, no way.

I think the true contract is the $3k one. Since you can be compensated for the breach with money (you have a liquidated amount), I don't see how you were damaged for a greater amount from him telling you he was a contractor. If it is found the contract was effectively modified, then you may have some damages for the misrepresentation. But, all that is going to do, from a money sense, is bring your position back to the original contract.

The attorney will probably not willingly talk about a client without a court order as it puts his license at risk for breaching the ethical duty of confidentiality. Because of the duty and difficulty, quashing is clearly the path to take on the subpoena. Besides, there may be a privilege on the information anyway. Now, say there wasn't. That the attorney is just being a jerk. You subpoena them to the stand and ask the magic question, "Who's Sally?" Then they give you the whole 411 on Sally. Everything you want about Sally. Now what? This is small claims. Call your next witness sir.
 

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