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DP Pham, LLC v. Cheadle

Filed April 15, 2016, Fourth District, Div. Three

Cite as G050964

Robert Obarr contracted to sell a mobile home park to S.C.D. Enterprises, who assigned the purchase agreement to Westminster. After escrow opened, Obarr contracted to sell the mobile home park to Pham. Westminster and Pham filed actions against Obarr, who died during the litigation. After Obarr's death, Pham filed the declaration of Obarr's bookkeeper describing Obarr’s retention of attorney Kimes, and attaching an e-mail and letter to Obarr from Kimes. The special administrator sought orders to exclude this evidence on the ground it was protected by the attorney-client privilege, and to disqualify Pham’s counsel for improperly obtaining and using the privileged documents. The trial court conducted an in camera review of the evidence and determined the attorney-client privilege did not apply because statements by Obarr's attorney in the communications indicated he did not represent Obarr, and the statutory exceptions provided in Evidence Code sections 957, 960, and 961 applied. The special administrator appealed.

The appellate court reversed. The court cannot review the contents of communications to determine whether the attorney-client privilege applies. The privilege attaches to all confidential communications between an attorney and client. When the proponent makes a prima facie showing of a confidential attorney-client communication, the court must presume the communication is privileged, and the burden shifts to the opponent to establish waiver, an exception, or some other reason the privilege does not apply. The special administrator made a prima facie showing of a confidential attorney-client communication, which was not rebutted. Section 957 is based on the assumption a decedent would want the privileged communication disclosed to ensure his intent is carried out. Section 957 did not apply here because the parties made claims against, not through, Obarr. The purpose of sections 960 and 961 is to permit an attorney to testify about a client’s intent regarding an instrument affecting an interest in property. There was no showing the disputed evidence consisted of the type of communications about which an attesting witness would testify. The appellate court remanded the case to determine if Pham’s counsel should be disqualified.

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