Filed 4/15/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DP PHAM, LLC,

Cross-complainant, Cross-defendant, 

and Respondent,

v.

C. TUCKER CHEADLE, as Administrator, 

etc.,

Cross-defendant, Cross-complainant, 

and Appellant.

 G050964

 (Super. Ct. No. 30-2013-00645166)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Linda S. 

Marks, Judge. Reversed and remanded.

C. Tucker Cheadle, in pro. per.; Callahan, Thompson, Sherman & Caudill, 

Robert W. Thompson and Bryan S. Owens for Cross-defendant, Cross-complainant, and 

Appellant.

Phan Trial Group and Luan K. Phan for Cross-complainant, 

Cross-defendant, and Respondent.
2

* * *

Appellant C. Tucker Cheadle (Cheadle), as administrator of the estate of 

Robert F. Obarr (Obarr), appeals from an order denying his motion to disqualify counsel 

for respondent DP Pham LLC (Pham). Cheadle contends disqualification was required 

because Pham’s counsel improperly obtained copies of privileged communications 

between Obarr and his attorney, and used those communications to oppose another 

party’s summary adjudication motion in this case. The trial court denied the 

disqualification motion because it concluded the communications were not privileged.

We reverse. After reviewing copies of the communications, the trial court 

concluded they were not privileged based on their content. A court, however, may not 

review the contents of a communication to determine whether the attorney-client 

privilege protects that communication. The attorney-client privilege is an absolute 

privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit. 

The privilege attaches to all confidential communications between an attorney and a 

client regardless of whether the information communicated is in fact privileged. 

Accordingly, it is neither necessary nor appropriate to review a communication to 

determine whether the attorney-client privilege protects it.

Once the proponent makes a prima facie showing of a confidential 

attorney-client communication, it is presumed the communication is privileged and the 

burden shifts to the opponent to establish waiver, an exception, or that the privilege does 

not for some other reason apply. The opponent may not rely on the communication’s 

content to make that showing. 

Here, the trial court relied exclusively on the content of the 

communications to conclude they were not privileged and Pham points to no other 

evidence to support the trial court’s determination. The court also concluded the 

communications fell with certain statutory exceptions the Evidence Code establishes for 
3

the privilege.

1

 As explained below, we conclude the trial court erred in applying these 

statutory exceptions because to do so here would expand them well beyond their intended 

scope.

Although we reverse the trial court’s order denying the disqualification 

motion, we remand for the trial court to determine whether the receipt and use of the 

privileged communications by Pham’s counsel warrants disqualification. As explained 

below, the decision whether to disqualify counsel is vested in the trial court’s sound 

discretion based on its careful balancing of a variety of factors concerning the disclosure 

and use of the privileged information. The court never considered those factors based on 

its determination the communications were not privileged.

I

FACTS AND PROCEDURAL HISTORY

Pham made three loans toObarr totaling nearly $3 million, and Obarr 

secured each loan by granting Pham a lien on a mobilehome park he owned in 

Westminster, California (Property). This action arose when Obarr allegedly agreed to 

sell the Property to two different buyers.

In March 2013, Obarr allegedly contracted to sell the Property to S.C.D. 

Enterprises (SCD) for $7 million based on a right of first refusal under a lease SCD held 

on the Property. SCD promptly assigned the purchase agreement to Westminster MHP 

Associates, LP (Westminster), which allegedly opened escrow on the Property with 

Obarr. According to Westminster, it satisfied all contingencies for the sale within 

10 days of opening escrow. 

Shortly after Westminster opened escrow, Obarr allegedly contracted to sell 

the Property to Pham for $8 million, which included the balance due on Pham’s loansto 

 

1 All statutory references are to the Evidence Code unless otherwise stated.
4

Obarr. According to Pham, it opened escrow with a separate escrow company and 

deposited $25,000 toward its purchase of the Property a few days after contracting with 

Obarr. Obarr also allegedly executed a deed conveying the Property to Pham and 

deposited the deed with this escrow. 

Christi Torres Galla served as Obarr’s bookkeeper and personal assistant,

managing his business affairs and communicating with others on his behalf. She 

regularly opened and reviewed Obarr’s mail and also typed letters and e-mails for him. 

At Obarr’s instructions, people who communicated with him often copied Galla on their 

written communications.Obarr regularly discussed his business affairs with Galla and 

sought her advice. She also attended business meetings with Obarr, and he asked her to 

witness his signature whenever he signed important documents. Shapleigh Kimes is a 

licensed attorney who represented Obarr on a variety of matters, and Al Gausewitz was a 

broker Obarr hired to market and sell the Property. 

In April 2013, Westminster filed this action, alleging claims against Obarr 

for specific performance of the SCD purchase agreement, breach of the SCD purchase 

agreement (as an alternative to specific performance), breach of the implied covenant of 

good faith and fair dealing, and declaratory relief. Westminster also alleged claims 

against Pham and Galla for intentional interference with the SCD purchase contract, and 

against Pham for declaratory relief.2 Pham answered Westminster’s complaint and filed 

a cross-complaint against Obarr, alleging claims for specific performance of Pham’s 

purchase agreement, breach of contract, intentional interference with a written contract, 

breach of the implied covenant of good faith and fair dealing, declaratory relief, and 

constructive trust. 

 

2

The operative complaint also named the escrow company Pham used as a 

defendant on the specific performance and intentional interference with contract claims.
5

Obarr died unexpectedly in August 2013. The trial court appointed 

Cheadle as a special administrator for Obarr’s estate and in that capacity substituted 

Cheadle for Obarr as a party to this action. Cheadle then filed a cross-complaint alleging 

an interpleader claim against both Westminster and Pham concerning the Property. 

Based on Pham’s loans to Obarr, Cheadle also alleged claims against Pham for usury, 

intentional misrepresentation, negligent misrepresentation, money had and received, 

unjust enrichment, reformation, and violation of the unfair competition law (Bus. & Prof. 

Code, § 17200). 

In July 2014, Westminster sought summary adjudication on its specific 

performance claim. In opposition, Pham submitted Galla’s declaration that described her 

working relationship with Obarr and her rolein his efforts to sell the Property.She also 

described Obarr’s relationship with Kimes, when Kimes stopped representing Obarr 

regarding the Property’s sale, and Kimes’s knowledge about certain offers to purchase 

the Property. The exhibits Galla attached to her declaration included a September 2012 

e-mail from Kimes to Obarr, and a January 2013 letter from Kimes to Obarr. Galla was 

copied on both communications and both clearly identified Kimes as an attorney.

Cheadle promptly filed evidentiary objections, claiming the January letter 

and a paragraph in Galla’s declaration discussing it were inadmissible because the letter 

was a privileged attorney-client communication between Obarr and Kimes. A few days 

later, Cheadle filed an ex parte application for an order (1) excluding as evidence the 

letter and the paragraph discussing it, and (2) disqualifying Pham’s counsel. According 

to Cheadle, Pham’s counsel improperly interviewed Galla and “coerce[d]” her to disclose 

privileged attorney-client communications between Obarr and Kimes to which she was 

privy as Obarr’s bookkeeper and personal assistant. Cheadle argued disqualification was 

required because Pham’s counsel inadvertently received materials that were clearly 

privileged and confidential, but failed to notify Cheadle and used them to oppose the 

summary adjudication motion. Pham opposed the ex parte application, arguing Galla 
6

voluntarily provided Pham’s counsel with the communications, the January 2013 letter 

was not privileged on its face, and Obarr and Cheadle nonetheless waived the privilege 

by disclosing the letter and other communications to third parties, by failing to make 

reasonable efforts to preserve the privilege, and by putting the communications at issue. 

The trial court heard Westminster’s summary adjudication motion and 

Cheadle’s ex parte application at the same time. The court sustained Cheadle’s 

evidentiary objections and denied Westminster’s motion without considering the January 

letter or the paragraph in Galla’s declaration discussing it, but the courtdeclined to decide 

the disqualification request on an ex parte basis and ordered Cheadle to file a noticed 

motion to address the issue. Cheadle filed the motion, and based on the attorney-client 

privilege sought to (1) exclude as evidence the September e-mail, the January letter, and 

three paragraphs in Galla’s declaration discussing those communications; (2) disqualify 

Pham’s counsel for obtaining and using Obarr’s privileged communications; and (3) seal 

Galla’s declaration. The trial court twice continued the hearing on Cheadle’s motion to 

allow supplemental briefing on whether any statutory exception to the attorney-client 

privilege applied to the e-mail and letter. 

After considering the supplemental briefs, the trial court denied the motion 

in its entirety because it found the attorney-client privilege did not protect the e-mail and 

letter.The court explained Cheadle presented evidence making a prima facie showing the 

e-mail and letter were confidential communications between an attorney and a client, but 

the court’s incamera review of the communications led it to conclude the privilege did 

not apply because Kimes’s statements in the communications suggested he was not 

representing Obarr concerning the potential sale of the Property, and therefore as to the 

Property no attorney-client relationship existed. As authority permitting it to review the 

e-mail and letter “to determine if [they] are privileged,” the trial court cited OXY 

Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874 (OXY). 
7

The court further explained the attorney-clientprivilege did not apply to the 

e-mail and letter based on the statutory exceptions to the privilege established by 

sections 957, 960, and 961, which provide the privilege does not protect a communication 

relevant to an issue (1) “between parties all of whom claim through a deceased client” 

(§ 957); (2) “concerning the intention of a client, now deceased, with respect to a deed of 

conveyance, will or other writing, executed by the client, purporting to affect an interest 

in property” (§ 960); or (3) “concerning the validity of a deed of conveyance, will, or 

other writing, executed by a client, now deceased, purporting to affect an interest in 

property” (§ 961). 

Cheadle timely appealed from the court’s order denying his motion to 

disqualify Pham’s counsel. 

II

DISCUSSION

A. The Trial Court Erred In Finding the Attorney-Client Privilege Did Not Apply

1. Attorney-Client Privilege Governing Principles

Based on the attorney-client privilege, a client may refuse to disclose, and 

may prevent others from disclosing, confidential communications between a client and 

his or her attorney. (§ 954; Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 111 

(Kerner).) A “‘client’” is statutorily defined as “a person who, directly or through an 

authorized representative, consults a lawyer for the purpose of retaining the lawyer or 

securing legal service or advice from him in his professional capacity.” (§ 951.) 

A“‘confidential communication between client and lawyer’” is statutorily defined as 

“information transmitted between a client and his or her lawyer in the course of that 

relationship and in confidence by a means which, so far as the client is aware, discloses 

the information to no third persons other than those who are present to further the interest 
8

of the client in the consultation or those to whom disclosure is reasonably necessary for 

the transmission of the information or the accomplishment of the purpose for which the 

lawyer is consulted, and includes a legal opinion formed and the advice given by the 

lawyer in the course of that relationship.” (§ 952.)

The privilege’s “fundamental purpose ‘is to safeguard the confidential 

relationship between clients and their attorneys so as to promote full and open discussion 

of the facts and tactics surrounding individual legal matters. [Citation.] . . . [¶] Although 

exercise of the privilege may occasionally result in the suppression of relevant evidence, 

the Legislature of this state has determined that these concerns are outweighed by the 

importance of preserving confidentiality in the attorney-client relationship. . . . “The 

privilege is given on grounds of public policy in the belief that the benefits derived 

therefrom justify the risk that unjust decisions may sometimes result from the suppression 

of relevant evidence.”’” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 

725, 732 (Costco).) “The privilege is absolute and prevents disclosure of the 

communication regardless of its relevance, necessity or other circumstances peculiar to 

the case.” (Kerner, supra, 206 Cal.App.4th at p. 111.)

The attorney-client privilege protects the transmission of information 

regardless of the contentor whether the information is discoverable from other sources. 

(Costco, supra, 47 Cal.4th at pp. 735, 739.) It attaches to a confidential communication 

between the attorney and the client and bars discovery of the entire communication, 

including unprivileged material. (Id. at pp. 734, 736.) “‘Neither the statutes articulating 

the attorney-client privilege nor the cases which have interpreted it make any 

differentiation between “factual” and “legal” information.’” (Id. at p. 734.) For example, 

the Supreme Court has explained, “‘[T]he privilege covers the transmission of documents 

which are available to the public, and not merely information in the sole possession of the 

attorney or client. In this regard, it is the actual fact of the transmission which merits 
9

protection, since discovery of the transmission of specific public documents might very 

well reveal the transmitter’s intended strategy.’”(Ibid.) 

“The question whether the attorney-client privilege applies to a particular 

communication is a question of fact if the evidence is in conflict.” (Kerner, supra, 

206 Cal.App.4th at p. 117.) “‘When the facts, or reasonable inferences from the facts, 

shown in support of or in opposition to the claim of privilege are in conflict, the 

determination of whether the evidence supports one conclusion or the other is for the trial 

court, and a reviewing court may not disturb such finding if there is any substantial 

evidence to support it.’” (People v. Gionis(1995) 9 Cal.4th 1196, 1208 (Gionis).)

2. Pham Failed to Overcome Cheadle’s Prima Facie Showing the E-mail and 

Letter Were Confidential Attorney-Client Communications

Cheadle contends he made a prima facie showing the e-mail and letter were 

confidential attorney-client communications between Obarr and Kimes, and the trial 

court then impermissibly reviewed the contents of those communications to rule on 

Cheadle’s privilege claim. Cheadle asserts Pham and the trial court identified no 

evidence other than the contents of the e-mail and letter to show the communications 

were not privileged, and therefore Pham failed to overcome Cheadle’s prima facie 

showing and the resulting presumption the communications were privileged. We agree.

“The party claiming the privilege has the burden of establishing the 

preliminary facts necessary to support its exercise, i.e., a communication made in the 

course of an attorney-client relationship. [Citations.] Once that party establishes facts 

necessary to support a prima facie claim of privilege, the communication is presumed to 

have been made in confidence and the opponent of the claim of privilege has the burden 

of proof to establish the communication was not confidential or that the privilege does 

not for other reasons apply.” (Costco, supra, 47 Cal.4th at p. 733; see § 917, subd. (a).)

Here, it is undisputed the e-mail and letter were communications from 

Kimes to Obarr, and Galla was the only other party to those communications. Cheadle 
10

submitted Kimes’s declaration explaining Kimes was a licensed attorney who had an 

ongoing attorney-client relationship with Obarr and represented him on the sale of the 

Property. Kimes also explained he copied Galla on his communications with Obarr 

because she was Obarr’s assistant and Obarr instructed him to do so.Galla’s declaration 

also acknowledged Kimes was an attorney who represented Obarr on various legal 

matters and she received communications from Kimes on Obarr’s behalf about those 

matters.

3As the trial court acknowledged, this evidence satisfied Cheadle’s initial burden 

and gave rise to a presumption the e-mail and letter were confidential, attorney-client 

communications. (See Costco, supra, 47 Cal.4th at p. 733 [evidence showed client hired 

attorney to represent it and therefore attorney’s letter to client met prima facie threshold 

that letter was a privileged communication].)

The trial court found Pham overcame this presumption based on the 

contents of the e-mail and letter. The court explained itsincamera review of the 

communications revealed they were not privileged because “Mr. Kimes doesn’t really 

provide Mr. Obarr with any advice, counsel, sharing of information, and certainly 

Mr. Obarr has not provided any information to Mr. Kimes.”The court further explained 

the communications showed they were not privileged because they stated Kimes was not 

currently representing Obarr in selling the Property, Obarr failed to sign a retainer 

agreement, and Kimes stated he would refund the unused portion of Obarr’s deposit. The 

trial court, however, erred when it reviewed the contents of the e-mail and letter to 

determine whether they were privileged attorney-client communications.

As explained above, the fundamental purpose of the attorney-client 

privilege is to safeguard the confidential relationship between an attorney and a client to 

 

3

Pham does not claim on appeal that copying Galla on Kimes’s 

communications to Obarr excluded them from the attorney-client privilege, and therefore 

Pham forfeited that issue. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [appellant forfeits 

claim of error by failing to cite authority and provide legal analysis addressing claim].)
11

promote the open discussion of all matters relating to the representation. (Costco, supra, 

47 Cal.4th at p. 732.) The privilege therefore protects the confidential communication or 

transmission of information between an attorney and a client regardless of whether the 

information transmitted is otherwise privileged. (Id. at pp. 734, 736.) The protection the 

privilege provides is absolute and prevents the disclosure of any part of a privileged 

communication regardless of its content or any particularized need for disclosure. 

(Kerner, supra, 206 Cal.App.4th at p. 111.) 

Consequently, “it is neither customary nor necessary to review the contents 

of the communication in order to determine whether the [attorney-client] privilege 

applies.” (Cornish v. Superior Court (1989) 209 Cal.App.3d 467, 480 (Cornish).) A

court’s determination on whether the privilege applies “does not involve the nature of the 

communications or the effect of disclosure but rather the existence of the relationship at 

the time the communication was made, the intent of the client and whether the 

communication emanates from the client.” (Ibid.; see Costco, supra, 47 Cal.4th at p. 739 

[“because the privilege protects a transmission irrespective of its content, there should be 

no need to examine the content in order to rule on a claim of privilege”].)

Consistent with these principles, California courts have recognized “we 

must approach th[e] issue [of whether documents are protected by the attorney-client 

privilege] without inspection of the documents themselves.” (Cooke v. Superior Court

(1978) 83 Cal.App.3d 582, 588 (Cooke); see State Farm Fire & Casualty Co. v. Superior 

Court (1997) 54 Cal.App.4th 625, 640 (State Farm) [“We will not take into consideration 

the actual privileged information in aid of our determination”].) Similarly, the Legislature 

has prohibited court-ordered disclosure of disputed documents for in camera review to 

resolve an attorney-client privilege claim. (§ 915, subd. (a); see Costco, supra, 

47 Cal.4th at pp. 736-740.)

The trial court justifiedits in camera review by citing the OXY decision. In 

OXY, the Court of Appeal crafted an exception to section 915 and its prohibition against 
12

in camera review when the review is necessary to determine whether there was a waiver 

of the claimed privileged or whether an exception to the privilege applied. (OXY, supra, 

115 Cal.App.4th at pp. 895-896.)OXY is inapposite, however, because the trial court 

reviewed Kimes’s e-mail and letter to determine whether they were privileged, not to 

determine whether Obarr or Cheadle waived the attorney-client privilege or whether an 

exception to the privilege applied. 

More importantly, this aspect of OXY is no longer good law after the 

Supreme Court’s Costco decision. In Costco, the Court explained the in camera review 

the OXY court ordered was not appropriate because “section 915 prohibits disclosure of 

information claimed to be privileged in order to determine if a communication is 

privileged.” (Costco, supra, 47 Cal.4th at p. 740.) The Costco court explained, “after the 

court has determined the privilege is waived or an exception applies generally, the court 

to protect the claimant’s privacy may conduct or order an in camera review of the 

communication at issue to determine if some protection is warranted notwithstanding the 

waiver or exception.” (Ibid.) A review, however, may not be conducted for any reason 

until the court determines the privilege does not apply or has been waived. (Ibid.)

Pham contends the trial court was allowed to review the e-mail and letter 

because Galla had publicly disclosed the communications when she provided Pham 

copies of the communications and Pham filed them with the court in opposition to 

Westminster’s summary adjudication motion. According to Pham, “section 915 does not 

prevent consideration of a privileged communication that has already been 

disclosed.”4The argument is meritless.

 

4

To support this contention, Pham relies on Roe v. Superior Court (1991) 

229 Cal.App.3d 832, 843, fn. 9. There, the appellate court concluded the trial court did 

not violate section 915 by ordering disclosure of the allegedly privileged information 

because the information already had been disclosed by other parties and therefore the 

court did nothing to force the disclosure. Roe is inapposite for two reasons. First, even 

though the trial court in Roe referred to section 915, it did not review any privileged 

information to determine whether a privilege applied. Second, Roe involved the right to 
13

As explained above, section 915 prohibits a court from reviewing an 

allegedly privileged attorney-client communication to determine whether it is privileged 

because the nature of the attorney-client privilege requires absolute protection for all 

confidential communications between an attorney and a client regardless of their content. 

(Cornish, supra, 209 Cal.App.3d at p. 480; see Costco, supra, 47 Cal.4th at pp. 734, 736, 

739.) Courts have no power to create exceptions to section 915’s mandate. (Costco, at 

p. 739.) The court therefore may not review the content of the communication to 

determine whether it is privileged. It simply does not matter that a third party disclosed 

the communication. (Seeid. at pp. 737-740; State Farm, supra, 54 Cal.App.4th at p. 640; 

Cooke, supra, 83 Cal.App.3d at p. 588; Cornish, at p. 480.)

Moreover, Pham’s argument assumes Galla’s disclosure to Pham, and 

Pham’s disclosure to the court, were authorized disclosures that waived the privilege and

allowed the court to review the communications. The attorney-client privilege, however, 

may be waived only by the holder of the privilege. (§ 912, subd. (a); Gionis, supra,

9 Cal.4th at p. 1207.)As relevant here, the holder is the client, a guardian or conservator 

of the client, or the personal representative of the client if the client is deceased. (§ 953.) 

Pham points to no evidence in the record showing either Obarr or Cheadle waived the 

attorney-client privilege as to these or any other communications, or that either of them 

authorized Galla to waive the privilege by disclosing these communications. The 

privilege is not waived when the client’s agent discloses a privileged communication 

 

privacy. (Roe, at p. 843.) The right to privacy provides a party with a qualified 

protection; it is not an absolute privilege like the attorney-client privilege. (John B. v. 

Superior Court (2006) 38 Cal.4th 1177, 1198-1199.) Case authority expressly authorizes 

a court to conduct an in camera review to determine whether the party challenging the 

right to privacy made a sufficiently strong showing of need for the information to 

overcome the qualified protection the right provides. (See e.g., Schnabel v. Superior 

Court (1993) 5 Cal.4th 704, 714; Babcock v. Superior Court (1994) 29 Cal.App.4th 721, 

727-728.) 
14

without the client’s authorization. (State Comp. Ins. Fund v. WPS, Inc.(1999) 

70 Cal.App.4th 644, 652-654 (State Fund) [no waiver of attorney-client privilege when 

attorney inadvertently and without client’s authorization disclosed otherwise privileged 

communications because client did not intentionally or voluntarily relinquishknown 

right].)

The trial court therefore was not permitted to review the contents of the 

e-mail and letter, and the court’s ruling they were not privileged attorney-client 

communications must stand or fall based on other evidence in the record. Pham, 

however, points to no other evidence showing the e-mail and letter were not confidential 

communications between an attorney and a client made during the course of the 

attorney-client relationship. In contrast, prima facie evidence supports the existence of an 

attorney-client relationship between Kimes and Obarr.

Other than her summary of the e-mail and letter, nothing in Galla’s 

declaration definitively shows Kimes did not represent Obarr regarding the Property’s 

sale. Moreover,Galla’s declaration acknowledged Kimes represented Obarr on a number 

of legal matters, and therefore acknowledged an attorney-client relationship existed 

between Obarr and Kimes. Galla’s declaration also attached an April 2013 letter from 

Kimes to John Defalco, stating Kimes represented Obarr on the Property’s sale and Obarr 

instructed him to contact Defalco to inquire whether he would match the current offer to 

purchase the Property. Galla and Pham do not address this letter. Thus, Pham failed to 

overcome Cheadle’s prima facie showing and the presumption the communications were 

privileged.5

 

5 We express no opinion on whether the contents of the e-mail and letter 

constitute substantial evidence sufficient to support the trial court’s ruling because we 

may not properly consider that information.
15

3. No Statutory Exception to the Attorney-Client Privilege Excludes the 

E-mail and Letter from the Privilege’s Protection

Cheadle contends the trial court erred in ruling the statutory exceptions to 

the attorney-client privilege established by sections 957, 960, and 961 excluded the 

e-mail and letter from protection. We agree. 

a. Section 957’s Exception for Parties Claiming Througha Deceased 

Client

Section 957 provides the attorney-client privilege does not apply “to a 

communication relevant to an issue between parties all of whom claim through a 

deceased client, regardless of whether the claims are by testate or intestate succession, 

nonprobate transfer, or inter vivos transaction.” Pham contends this exception applies 

because both it and Westminster claim to be owners of the Property through separate

inter vivos transactionswith Obarr, and the communications between Obarr and Kimes 

are relevant to whether Obarr intended to sell the Property to SCD (and therefore 

Westminster) or Pham.6 In contrast, Cheadle contends this exception does not apply 

based on the statutory requirement the communications must be relevant to an issue 

between “‘parties all of whom claim through a deceased client.’” According to Cheadle, 

Westminster and Pham make claims against rather than through Obarr because they both 

seek monetary damages against Obarr’s estate. 

There is no California case law interpreting section 957’s relevant 

language, but the Law Revision Commission Comments concerning the statute’s original 

 

6

In addition to the statutory language extending this exception to parties who 

claim through a deceased client by inter vivos transaction, Pham also relies on the 

language applying the exception to parties who claim through a deceased client by 

nonprobate transfer. The inter vivos transaction language is the relevant language here 

because both Westminster and Pham claim through contracts or deeds Obarr allegedly

executed to sell or transfer the Property during his lifetime. A nonprobate transfer occurs 

upon death, but outside the probate context, such as through a trust. (See generally Estate 

of Gardner (2010) 187 Cal.App.4th 543, 549.) The alleged transfers to Westminster and 

Pham do not qualify as nonprobate transfers.
16

enactment in 1965 explain the underlying rationale for this exception: “Th[is] traditional 

exception [to the attorney-client privilege] . . . is based on the theory that claimants in 

privity with the estate claim through the client, not adversely, and the deceased client 

presumably would want his communications disclosed in litigation between such 

claimants so that his desires in regard to the disposition of his estate might be correctly 

ascertained and carried out.”(Cal. Law Revision Com. com. 29B Pt. 3A, West’s Ann. 

Evid. Code (2009 ed.) foll. § 957, p. 387, second italics added.)7

In 2009, the Law Revision Commission again examined this exception 

when the Legislature directed the Commission to study application of the attorney-client 

privilege after a client’s death. (Recommendation: Attorney-Client Privilege After 

Client’s Death (Feb. 2009) 38 Cal. Law Revision Com. Rep. (2008) p. 166.) In 

recommending the Legislature clarify that this exception applies to nonprobate transfers, 

the Commission further explained the exception’s purpose and application: “The 

exception is based on the assumption that a decedent would have wanted the 

attorney-client communication disclosed in litigation between the decedent’s 

beneficiaries (as opposed to litigation in which a third party, such as a creditor, claims 

against the decedent). Such disclosure helps to ensure the client’s intent regarding 

disposition of the client’s assets ‘might be correctly ascertained and carried out.’” (Id. at 

p. 196, fn. omitted; seeFletcher v. Superior Court (1996) 44 Cal.App.4th 773, 779, 

quoting Clark v. Second Judicial Dist. Court (1985) 101 Nev. 58, 62 [“‘“in a suit 

between devisees under a will, statements made by the deceased to counsel respecting the 

execution of the will, or other similar document, are not privileged. While such 

communications might be privileged, if offered by third persons to establish claims 

 

7

“‘Explanatory comments by a law revision commission are persuasive 

evidence of the intent of the Legislature in subsequently enacting its recommendations 

into law.’” (Donkin v. Donkin (2013) 58 Cal.4th 412, 424, fn. 8.)
17

against an estate, they are not within the reason of the rule requiring their exclusion, 

when the contest is between the heirs or next of kin”’” (italics omitted)].)

This case presents a hybrid situation involving claims both through and 

against the deceased client and his estate. Westminster and Pham each claim title to the 

Property through Obarr based on separate inter vivos transactions with Obarr, but both 

also assert adverse claims against Obarr’s estate seeking monetary damages based on 

Obarr’s contract to sell the Property to the other buyer. Westminster’s complaint alleged 

claims against Obarr’s estate for specific performance, breach of contract, breach of the 

implied covenant of good faith and fair dealing, and declaratory relief. It seeks monetary 

damages and attorney fees against the estate even if Westminster succeeds on the specific 

performance claim. Pham’s cross-complaint similarly alleged claims against Obarr’s 

estate for specific performance, breach of contract, intentional interference with contract, 

breach of the implied covenant of good faith and fair dealing, declaratory relief, and 

constructive trust. It too seeks monetary damages and attorney fees against Obarr’s estate 

even if Pham succeeds on the specific performance claim. 

Based on these adverse claims seeking affirmative relief against Obarr’s 

estate beyond simply resolving to whom he intended to sell the Property, we conclude 

section 957’s exception to the attorney-client privilege does not apply here. If the 

otherwise privileged communications between Obarr and Kimes are not protected by the 

privilege, then the parties will use the communications both to identify to whom Obarr 

intended to sell the Property and to establish a claim for damages against Obarr’s estate. 

For example, if one of the communications showed Obarr intended to sell the Property to 

SCD (and therefore Westminster), then Pham would use that communication to show 

Obarr’s estate was liable for inducing Pham to purchase the Property after Obarr already 

had sold it. That result is inconsistent with the exception’s purpose. 

As explained above, the Legislature’s based this exception on the 

reasonable assumption the deceased client would want privileged communications 
18

disclosed to ensure distribution of the client’s estate was consistent with the client’s 

wishes. In that context, the court is confronted with gifts of property that would not 

result in potential liability for the deceased client’s estate. Unlike here, that situation 

does not involve a sale of property that may result in liability for the deceased client’s 

estate. 

In codifying the exception, the Legislature expanded it to include inter 

vivos transactions in addition to transfers through testate or intestate succession because a 

deceased client presumably would want his assets distributed according to his wishes 

regardless of whether the transfers were made through an inter vivos transaction or either 

testate or intestate succession. The legislative history, however, demonstrates the 

Legislature did not intend the expanded exception to apply in cases involving claims 

against the deceased client’s estate based on inter vivos transactions. 

The underlying rationale for section 957 does not apply to claims against 

the deceased’s estate because it does not necessarily follow that a client would want his 

or her privileged communications disclosed when disclosure may expose the estate to 

liability. Moreover, when, as here, there are allegedly two arm’s length transactions 

involving the sale of property, as opposed to a gift of property, the client does not have 

the same interest in ensuring a particular party receives the property. The client may 

want to see the property go to the buyer willing to pay the highest price, but the client is 

not necessarily willing to expose his estate to liability to ensure that outcome.

Of course, a deceased client’s personal representative could waive the 

attorney-client privilege for certain communications if the representative determines

doing so would be in the best interest of the client’s estate. (§§ 912, 953 [decease client’s 

personal representative is holder of privilege with standing to waive it].) That waiver, 

however, would be made during the litigation based on a careful determination of 

whether disclosing a particular communication would serve the client’s best interest. In 

contrast, applying the exception in this situation would result in a wholesale exclusion of 
19

an entire category of communications from the attorney-client privilege without any 

analysis or consideration of whether doing so would serve the client’s best interests or 

ensure the client’s wishes were carried out. The underlying rationale for the exception 

does not support its application in this situation.

b. ExceptionsUnder Sections 960 and 961 for a Deceased Client’s 

Intention Regarding a Writing Affecting a Property Interest or the 

Validity of a Writing

Section 960 and 961 establish two related exceptions to the attorney-client 

privilege concerning a deceased client’s writing affecting an interest in property. 

Section 960 provides the privilege does not apply to “a communication relevant to an 

issue concerning the intention of a client, now deceased, with respect to a deed of 

conveyance, will, or other writing, executed by the client, purporting to affect an interest 

in property.” Section 961 states the privilege does not apply to “a communication 

relevant to an issue concerning the validity of a deed of conveyance, will, or other 

writing, executed by a client, now deceased, purporting to affect an interest in property.”

As with section 957’s exception, there is no case law construing the 

language of these statutes, but the joint Law Revision Commission Comments explain the 

intended purpose and scope of these exceptions: “Although the attesting witness 

exception stated in Section 959 is limited to information of the kind to which one would 

expect an attesting witness to testify, there is merit to having an exception that applies to 

all dispositive instruments. A client ordinarily would desire his lawyer to communicate 

his true intention with regard to a dispositive instrument if the instrument itself leaves the 

matter in doubt and the client is deceased. Likewise, the client ordinarily would desire his 

attorney to testify to communications relevant to the validity of such instruments after the 

client dies. Accordingly, two additional exceptions—Sections 960 and 961—are provided 

for this purpose. These exceptions have been recognized by the California decisions only 
20

in cases where the lawyer is an attesting witness.”

8

(Cal. Law Revision Com. com. 29B 

Pt. 3A, West’s Ann. Evid. Code (2009 ed.) foll. § 960, p. 394.)

This comment reveals the purpose of these exceptions is to allow an 

attorney to provide testimony about a client’s intention regarding any instrument 

affecting an interest in property in the same way the exception codified in section 959 

allows an attorney to testify about a client’s intention about an attested document on 

which the attorney served as an attesting witness. The Law Revision Commission 

Comments to section 959 make clear this narrow exception is limited to the types of 

communications to which an ordinary attesting witness would testify, rather than a 

wholesale exception for all communications concerning the attested document or related 

transaction: “This exception relates to the type of communication about which an 

attesting witness would testify. The mere fact that an attorney acts as an attesting witness 

should not destroy the lawyer-client privilege as to all statements made concerning the 

document attested; but the privilege should not prohibit the lawyer from performing the 

duties expected of an attesting witness.” (Cal. Law Revision Com. com. 29B Pt. 3A, 

West’s Ann. Evid. Code (2009 ed.) foll. § 959, p. 392.)

Based on the Comments of the Law Revision Commission, we conclude the 

exceptions do not apply to Kimes’s e-mail and letter to Obarr because there is no 

showing those communications are the type of communications about which an attesting 

witness would testify. The e-mail is dated September 2012, and the letter is dated 

January 2013, but Obarr did not allegedly enter into the purchase agreement with SCD 

until March 2013, or the purchase agreement with Pham until April 2013. At most, the 

e-mail and letter therefore would reflect general information about Obarr’s intent 

 

8

Section 959 provides the attorney-client privilege does not apply to “a 

communication relevant to an issue concerning the intention or competence of a client 

executing an attested document of which the lawyer is an attesting witness, or concerning 

the execution or attestation of such a document.”
21

concerning the Property’s sale months before he executed either purchase agreement, 

rather than the sort of information an attesting witness would have about the purchase 

agreements and their execution. 

Applying these exceptions with the breadth Pham advocates would 

essentially eliminate the privilege for all communications relating to the underlying 

transaction or transfer.That is well beyond the intended scope reflected in the foregoing 

Law Review Commission Comments. 

Moreover, Pham contends Kimes had no role in the negotiation and 

execution of either of the purchase agreements, and therefore Pham made no showing 

Kimes would have any information about these agreements and their execution. As the 

party asserting an exception to the attorney-client privilege, Pham bore the burden to 

show the exception applied. (Venture Law Group v. Superior Court (2004) 

118 Cal.App.4th 96, 102.) 

B. Pham Did Not Establish Obarr or Cheadle Waived the Attorney-Client Privilege

Although the trial court did not rule on its waiver argument, Pham contends 

we should affirm the trial court’s ruling on the ground Obarr and Cheadle waived the 

attorney-client privilege. Pham posits three separate waiver theories, but fails to 

adequately support any of them with legal authority, argument, and evidence.

First, Pham argues Obarr and Cheadle waived the attorney-client privilege 

because they did not act reasonably and diligently to preserve the privilege. According to 

Pham, Obarr and Cheadle knew Galla held many of Obarr’s privileged documents 

relevant to this litigation, but they did nothing to recover those documents and preserve 

the privilege until Pham obtained copies from Galla and filed them with the court.Pham 

cites no authority establishing a client waives the privilege by failing to retrieve his or her 

privileged documents from an agent entrusted with them. Pham therefore forfeited this 
22

argument by failing to adequately support it with argument and relevant legal authority. 

(In re S.C., supra, 138 Cal.App.4th at p. 408.)

Second, Pham claims Obarr waived the privilege by freely authorizing 

Galla and others to share communications about the Property’s sale with third parties. As 

an example, Pham contends the evidence showed Galla sent the January 2014 letter at 

issue to the escrow company for Westminster’s purchase of the Property.Pham’s record 

citation, however, is to one of its opposition briefs rather than to any evidence in the 

record.An exhibit to that brief appears to be an e-mail from Galla to the escrow company, 

but there is no declaration or other testimony to authenticate or otherwise explain the email, and Pham therefore forfeited this claim as well. (Century Surety Co. v. Polisso

(2006) 139 Cal.App.4th 922, 956 [failure to citesupporting evidence in record forfeits 

claim].)

Finally, Pham contends Obarr waived the privilege by “put[ting] matters at 

issue that are contained in allegedly privileged documents.”Although fundamental 

fairness may require disclosure of privileged information when a plaintiff places in issue 

a communication that “goes to the heart of the claim in controversy” (Mitchell v. 

Superior Court (1984) 37 Cal.3d 591, 604), Pham made no showing and provided no 

argument on how the e-mail and letter shed light on any matter that Obarr or Cheadle 

placed in issue. It is difficult to see how Pham could prevail on this argument because 

Westminster and Pham are the parties who initiated this case against Obarr. In any event, 

Pham forfeited the claim by failing to provide any analysis or support for it. (In re S.C., 

supra, 138 Cal.App.4th at p. 408.)

C. The Trial Court Must Decide the Disqualification Issue

Cheadle contends we must disqualify Pham’s counsel because he

improperly obtained Obarr’s attorney-client privileged communications from Galla, 

carefully reviewed and analyzed the communications, and used them to oppose 
23

Westminster’s summary adjudication motion without notifying Cheadle and giving him 

an opportunity to prevent disclosure. We remand for the trial court to decide the 

disqualification issue because the court never resolved the matter based on its conclusion 

the e-mail and letter were not privileged. As we explain, this issue is vested in the trial 

court’s sound discretion in the first instance. 

“‘Protecting the confidentiality of communications between attorney and 

client is fundamental to our legal system. The attorney-client privilege is a hallmark of 

our jurisprudence that furthers the public policy of ensuring “‘the right of every person to 

freely and fully confer and confide in one having knowledge of the law, and skilled in its 

practice, in order that the former may have adequate advice and a proper defense.’”’” 

(Clark v. Superior Court (2011) 196 Cal.App.4th 37, 48 (Clark).) To protect the sanctity 

of the privilege and to discourage unprofessional conduct, an attorney has an ethical 

obligation to protect an opponent’s privileged and confidential information, and those of

third parties, when the attorney receives the information without a waiver from the holder 

of the privilege. (Ibid.)

Specifically, “[w]hen a lawyer who receives materials that obviously 

appear to be subject to an attorney-client privilege or otherwise clearly appear to be 

confidential and privileged and where it is reasonably apparent that the materials were 

provided or made available through inadvertence, the lawyer receiving such materials 

should refrain from examining the materials any more than is essential to ascertain if the 

materials are privileged, and shall immediately notify the sender that he or she possesses 

material that appears to be privileged. The parties may then proceed to resolve the 

situation by agreement or may resort to the court for guidance with the benefit of 

protective orders and other judicial intervention as may be justified. . . . [W]henever a 

lawyer ascertains that he or she may have privileged attorney-client material that was 

inadvertently provided by another, that lawyer must notify the party entitled to the 
24

privilege of that fact.” (State Comp., supra, 70 Cal.App.4th at pp. 656-657; see Rico v. 

Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817-818 (Rico).) 

This so-called “State Fund rule” establishes an objective standard that 

“holds attorneys to a reasonable standard of professional conduct when confidential or 

privileged materials are inadvertently disclosed.” (Rico, supra, 42 Cal.4th at p. 818.) “In 

applying the rule, courts must consider whether reasonably competent counsel, knowing 

the circumstances of the litigation, would have concluded the materials were privileged, 

how much review was reasonably necessary to draw that conclusion, and when counsel’s 

examination should have ended.” (Ibid.)

The failure to comply with these obligations may justify counsel’s 

disqualification, but does not automatically require it. (Rico, supra, 42 Cal.4th at p. 819; 

State Fund, supra, 70 Cal.App.4th at p. 657.) “‘“[M]ere exposure”’ to an adversary’s

confidences is insufficient, standing alone, to warrant an attorney’s disqualification.” 

(Rico, at p. 819; see State Fund, at p. 657)Instead, the court must consider the totality of 

the circumstances surrounding the receipt, review, use, and impact of the disclosed 

privileged information, with “‘the means and sources of breaches of the attorney-client 

confidentiality . . . be[ing] important considerations.’” (State Fund, at p. 657; see Rico, at 

p. 819.)

“A disqualification motion involves a conflict between a client’s right to 

counsel of his or her choice, on the one hand, and the need to maintain ethical standards 

of professional responsibility, on the other. [Citation.] Although disqualification 

necessarily impinges on a litigant’s right to counsel of his or her choice, the decision on a 

disqualification motion ‘involves more than just the interests of the parties.’ [Citation.] 

When ruling on a disqualification motion, ‘[t]he paramount concern must be to preserve 

public trust in the scrupulous administration of justice and the integrity of the bar. The 

important right to counsel of one’s choice must yield to ethical considerations that affect 
25

the fundamental principles of our judicial process.’” (Clark, supra, 196 Cal.App.4th at 

pp. 47-48.)

A motion to disqualify counsel is vested in the sound discretion of the trial 

court and we review the court’s ruling under the deferential abuse of discretion standard. 

“‘In exercising its discretion, the trial court must make a reasoned judgment that complies 

with applicable legal principles and policies.’ [Citations.] ‘The order is subject to reversal 

only when there is no reasonable basis for the trial court’s decision.’” (Clark, supra, 

196 Cal.App.4th at p. 46.)

Here, the trial court never undertook the careful balancing of competing 

interests required to determine Cheadle’s request to disqualify Pham’s counsel because 

the trial court concluded the e-mail and letter were not privileged, and therefore no basis 

for disqualifying Pham’s counsel existed. As explained above, the trial court erred in 

concluding the e-mail and letter were not privileged attorney-client communications. The 

foregoing standards regarding the inadvertent disclosure of these privileged 

communications apply because there was no showing either Obarr or Cheadle intended to 

disclose these communications to Pham or anyone else. 

We decline to decide the disqualification issue, and instead remand for the 

experienced trial judge to determine the issue based upon her superior knowledge of the 

underlying facts and the impact of this disclosure on the case. In doing so, the trial court 

should not consider any information it acquired from its review of the e-mail and letter. 

Rather, the court should limit itself to nonprivileged information it received from the 

parties about the communications and their impact on the action. Nothing about the 

attorney-client privilege, however, prevents the court from considering, or requiring 

disclosure of, any information not derived from an examination of the privileged 

communications, such as facts relating to who holds the privilege, whether an attorneyclient relationship existed at the time of the communications, and whether the client 

intended the communication to be confidential. (See Costco, supra, 47 Cal.4th at p. 737.) 
26

For example, Galla may testify about the circumstances surrounding the communications 

and the attorney-client relationship between Obarr and Kimes provided she has personal 

knowledge of these facts and does not disclose any privileged information or any 

information she gained from reviewing a privileged communication. Of course, as the 

holder of the attorney-client privilege, Cheadle may ask the court to conduct an in camera 

review of the communications (or consider the communications in deciding the 

disqualification issue) if he believes it is necessary for a proper determination of that 

issue. (See id. at pp. 738-740.) By providing this guidance and remanding the matter to 

the trial court, we express no opinion concerning whether the facts and circumstances

surrounding the disclosure and use of the e-mail and letter warrant disqualification in this 

case.

III

DISPOSITION

The order is reversed and remanded for further proceedings consistent with 

this opinion. Cheadle shall recover his costs on appeal.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.