Popelka, Allard, McCowan & Jones v. Superior Court

Petitioner, the law firm of Popelka, Allard, McGowan & Jones, seeks a writ of mandate to compel respondent court to deny real parties’ motion to compel answers at a deposition.

Petitioner (law firm) is one of two defendants in an action for malicious prosecution brought by real parties (plaintiffs) H. Coster Enterprises, Dutch Boy, Inc. and John J. Harvey. The complaint alleges that the law firm and its former client, James Petrinovich, acted without probable cause and with malice in bringing a prior action against plaintiffs.

Plaintiffs deposed Bernard Allard, one of the law firm’s partners, on February 12, 1979. During the deposition Allard refused to answer questions about the firm’s interoffice memos concerning the prior case, asserting the attorney work product privilege.

Plaintiffs moved to compel answers on May 24, 1979, contending that the law firm had waived the work product privilege by pleading the affirmative defense of probable cause in its answer to the complaint; that the work product privilege was inapplicable because the underlying action had terminated; that plaintiffs would be unfairly prejudiced by application of the privilege; and that the…