Pham and Westminster each contracted to buy a property from Obarr, who died before completing either sale.  Both Pham and Westminster sued to enforce their competing contracts.  Westminster moved for summary judgment and in opposition Pham submitted a declaration by Obarr’s bookkeeper, assistant, and confidant, attaching and discussing an email from Obarr’s attorney to Obarr, cc’ing the bookkeeper.  Cheadle, the representative of Obarr’s estate, immediately objected on attorney-client privilege grounds and moved to disqualify Pham’s counsel for improperly using the privileged communication.  Held, Cheadle met his initial burden of showing that the communication was prima facie privileged.  Pham failed to overcome that showing, and the trial court erred in looking at the e-mail’s contents to help it decide whether the communication was privileged or whether the privilege was waived.  Evid. Code 915 forbids consideration of the contents of prima facie privileged communications to decide privilege issues.  OXY Resources California v. Superior Court (2004) 115 Cal.App.4th 874, which allowed inspection to determine waiver was disapproved in that respect by Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725.  Also, none of the exceptions to the attorney-client privilege in decedent’s estate matters—Evid. Code 957, 960, 961—applied here since Pham and Westminster were suing Obarr’s estate, not claiming to be beneficiaries of it, and since the communication was not the type of evidence that the witness to a will or other document might provide about the decedent’s intentions.  The e-mail was privileged, and the trial court on remand must exercise its discretion in deciding whether to disqualify Pham’s counsel for having mis-used it rather than returning it to Cheadle.

California Court of Appeal, Fourth District, Division 3 (Aronson, J); April 15, 2016; 2016 WL 1544916