Accessing the Black Box - Attorney-Client Privilege in the Area of Estate Litigation

            As an estate planning attorney, you’ve just successfully created an estate plan for your client after several in-depth discussions to determine what the client wanted and the best way to capture those wishes.  Your client conversations are covered by the attorney-client privilege and you can rest assured of their confidentiality, right?  What if you’re the litigator who has just filed a petition challenging the validity of the estate plan and your case hinges on disclosure of the communications between the estate planner and the deceased client? Essentially, the issue is access to one of the most protected black boxes in the legal world: attorney-client privilege.[1]  To the surprise of some, the evidence code allows for this access in limited estate litigation situations.  This article addresses the issues every estate attorney should be alert to regarding the attorney-client privilege whether from a planning or litigation perspective.

            The Not So Simple Basics of Attorney-Client Privilege

A foundational understanding of the attorney-client privilege is necessary to better comprehend the exceptions to the privilege.  As stated by its name, the privilege exists between an attorney and a client.  The Evidence Code specifically defines these terms.[2]  Ironically, statutes and case law apply the privilege to individuals that are not attorneys and individuals not typically considered clients. 

For example, California law expands the definition of attorney or lawyer beyond individuals authorized to practice law, and includes individuals whom the client reasonably believes are authorized to practice law in any state or nation.[3]  Theoretically, a client may claim the privilege regarding communications he or she made to a high wealth estate planner in China who the client reasonably believed was authorized to practice law in China.  The key phrase here is reasonable belief, not unilateral, subjective belief.[4]  Furthermore, case law makes clear the privilege applies to prospective clients who have not yet retained the attorney.[5]

            With this in mind, California law would seem to apply the privilege to the following hypothetical.  A prospective client in California engages in a phone consultation with a high wealth estate planner in China who is not a lawyer, but the prospective client reasonably believes the planner is a lawyer.  After sharing confidential information with the planner, the prospective client decides not to retain the planner.  Under current law, the phone consultation would be privileged even though an actual lawyer was not involved and the client never retained the planner. 

            Although the privilege applies to prospective clients, it does not apply to communications after the attorney declines to represent the prospective client.[6]  Thus, in the hypothetical above, if the planner declines to assist the prospective client after the consultation, and the prospective client calls back, that subsequent conversation is not privileged.

            To be privileged, the information transmitted must be between a client and his or her lawyer “in the course of that relationship.”[7]  This element is relatively easy to determine when the client is seeking legal advice from the lawyer, but ambiguity arises when the communication is for something other than seeking legal advice.  In a somewhat twisted manner, courts look to the dominant purpose of the relationship, not the actual communication, to determine whether the communication is privileged.[8]  In fact, a court is not permitted to order in camera review of the communication in question to determine whether it is privileged.[9]  As succinctly stated in Clark v. Superior Court, “…the relevant inquiry is not the content of the communication but is instead the relationship of the communicators.”[10]

            For example, attorney-client privilege does not apply when the attorney acts merely as a negotiator for the client or is providing business advice.[11]  In practice, this line in the sand about what is or is not “in the course” of the attorney-client relationship is less of a hard line and more of a faint snake trail.  Imagine this scenario: a client retains the attorney to establish an estate plan and during that relationship the client also requests the attorney help negotiate the sale of property.  Are the communications regarding the property sale negotiation privileged even if they did not involve any legal advice?  If the dominant purpose of the relationship is the privileged estate plan creation, does the privilege apply to other aspects of the relationship even if unrelated to legal advice?  Based on Costco, the answer would seem to be yes because the privilege, once established, covers the entire communication irrespective of whether it includes unprivileged material.[12] 

How far can this rationale be stretched?  What if there is one email from a client about estate planning, then weeks later the client sends a dozen emails about property sale negotiations, none of which require legal advice, and the negotiations then take several months to finalize?  One could argue the dominant purpose changed from estate planning to negotiations where the attorney was working purely as a broker and not providing legal advice.  Does that make the estate planning email discoverable?  Hence the faint snake trail when determining the dominant purpose of the relationship.  Suffice it to say, the law is not crystal clear as to this issue.

            The final element of attorney-client privilege is that the communication between the attorney and client must be made 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 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.”[13]  This expands the privilege to communications between attorney, client, and paralegal or receptionist as well as other necessary individuals.  It also allows emails to be covered despite the fact the email communication is necessarily shared with several entities as it travels through the internet.

            In summary, the attorney-client privilege applies to a confidential communication between a lawyer and a client in the course of that relationship.[14]  A “lawyer” is defined as anyone the client reasonably believes is authorized to practice law.[15]  A “client” includes a potential client until the lawyer declines to represent the potential client.[16]  Whether a communication is made “in the course” of the lawyer-client relationship depends on the dominant purpose of the relationship.[17]  And, finally, the communication must be made confidentially with the lawyer and any others whose presence furthers the client’s interest or is reasonably necessary to further the transmission.[18]  Now that we’ve fully discussed these “basics”, let’s move on to the exceptions that apply to estate litigation.

             

 

 

            The Exceptions to the Attorney-Client Privilege Applicable to Estate Litigation

            Generally speaking, when a client dies, the privilege lives on and is held by the deceased client’s personal representative.[19]  There are a few distinct and significant statutory exceptions to this rule.  These exceptions are precisely what allow estate litigators access to privileged communications and are what estate planners must be aware of in the event a deceased client’s estate plan is litigated.

1. Evidence Code section 957 – No privilege as to communication relevant to an issue between parties all of whom claim through a deceased client

First, 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.”[20]   Despite the statute’s operation since 1967 and effective amendment in 2010, there is very little case law interpreting the statute’s language.[21]  Nevertheless, at least two principles appear clear. First, the exception only applies to the communications of a deceased client.[22]  Second, the relevant issue between the litigating parties must be through the deceased client, not against the deceased client.[23]

            To the first principle, Fletcher v. Superior Court clarifies the statute’s ambiguity as to whose communication is affected by the statute, holding that the statute only applies to the communications between the deceased client and his or her attorney.[24]  The statute itself simply states “there is no privilege as to a communication…” without clarifying which communication is not privileged.  Is it the communication between the deceased client and his or her attorney? Or any communication between anyone and their attorney “relevant to an issue between parties all of whom claim through a deceased client?”  These questions emphasize the importance of the holding in Fletcher.

In Fletcher, a petition was filed to determine the invalidity of a trust.[25]  The petitioners filed a motion to compel the decedent’s sister and trustee, Claire Fletcher (“Ms. Fletcher”), to produce documents withheld on the ground of attorney-client privilege and attorney work product.[26]  The issue, however, was that Ms. Fletcher and the decedent shared the same estate planning attorney.[27]  When the decedent was alive, Ms. Fletcher called her attorney and asked him to consult with the decedent.[28]  The attorney did so and assisted the decedent in amending her trust.[29]  The trust contestants sought disclosure of the communications between Ms. Fletcher and her attorney.[30]  Ms. Fletcher argued Evidence Code section 957 only applied to communications between the attorney and the deceased client, not her as the living client.[31]

The Fletcher court noted the ambiguity of the statute, but looked to statutory interpretation, the Law Revision Commission comments, and sister state authority to conclude the statute referred only to “the relationship between the attorney and the deceased client.”[32]  Accordingly, the Fletcher court reversed the lower court’s ruling granting the motion to compel disclosure of the communication between Ms. Fletcher and her attorney, who happened to also be the attorney for the decedent.[33]

A notable absence from the Fletcher analysis is whether the communications between Ms. Fletcher and her attorney regarding her sister were communications “in the course of that relationship.”  There is no discussion of the “dominant purpose” of the relationship between Ms. Fletcher and her attorney.  The opinion, however, does state the attorney assisted Ms. Fletcher’s family with estate planning and other legal advice prior to the communications regarding the decedent.[34]  This lack of analysis may indicate the dominant purpose was presumed because of the prior relationship between Ms. Fletcher and the attorney and, thus, the dominant purpose covered the communications regarding the decedent.  Nevertheless, the issue may be ripe for litigation.  What appears clear, however, is that Evidence Code section 957 only applies to communications between the attorney and the deceased client.

To the second principle of Evidence Code section 957, the relevant issue between the litigating parties must be through the deceased client, not against the deceased client.[35]  The Law Revision Commission comments are particularly insightful.  The DP Pham court quoted the comments when it stated the “ ‘underlying rationale…is 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.’ ”[36]

The Law Revision Commission further stated in its recommendation to the Legislature that 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, has 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.’”[37]

The Law Revision Commission’s use of the term “beneficiaries” as opposed to third party litigants is the crucial distinction and the defining point made in the DP Pham holding.  In DP Pham a client had entered into contracts with two buyers concerning the same mobile home park.[38]  The client had communications with his attorney regarding the sales.[39]  These communications also included the deceased client’s assistant.[40]  After the client’s death, the two buyers sued the estate for specific performance as well as other related actions.[41]  One buyer filed a motion for summary adjudication on its specific performance claim.[42]  In opposition, the second buyer submitted a declaration from the deceased client’s assistant that included communications between the deceased client, his attorney, and the assistant.[43]  The second buyer justified disclosure of the communication based on Evidence Code section 957 because the case sought to resolve issues between the parties all of whom claimed through the deceased client.[44]

The DP Pham court heavily relied on the Law Revision Commission comments and recommendation to hold that the buyers asserted claims against the estate, not through the estate.[45]  More specifically, the court found the buyers’ claims to be a hybrid of claims both through the estate and against the estate.[46]  The claims for title to the mobile home park based on contract were through the deceased client.[47]  However, both buyers also sought monetary damages against the estate.[48]  Essentially, if the disclosed communications indicated the true buyer, then the ineffective buyer would continue their claim for damages against the estate.[49]  As the court noted, “[t]hat result is inconsistent with the exception’s purpose.”[50]

In summary, the exception found in Evidence Code section 957 applies to claims through the deceased client, not against.  “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.”[51]  Additionally, the exception only applies to communications between the now deceased client and his or her attorney.[52]

 

1. Evidence Code section 959 – No privilege as to 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

The exception to attorney-client privilege found in Evidence Code section 959 is fairly straightforward.  The exception applies to “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.”[53]  Notably, the statute is not limited to deceased clients.  Rather, the exception relates to “the type of communication about which an attesting witness would testify.”[54] 

Thus, a lawyer who serves as an attesting witness can divulge information received in his or her capacity as an attesting witness, but not information received as a lawyer.[55]  Simply being a lawyer does not immunize the lawyer from disclosing information that an attesting witness must disclose when asked to testify.

An “attesting witness” has been defined as: 1) a person who, at the request or with the consent of the maker, places his name on the document for the purpose of making thereby an implied or expressed statement that the document was then known by him to have been executed by the purporting maker; and 2) an officer, whose signature is required by law or by rule of court to give validity to a document or to enable it to be filed for a specific purpose, is an attesting witness.[56]

While the statute is relatively straightforward, the difficulty is applying it to individual pieces of communication.  As can be easily imagined, a lawyer serving as an attested witness will likely engage in communication with his or her client that goes well beyond issues concerning the “intention or competence of a client”.  Thus, the privilege may apply to some lines of communication, but not others despite the fact the totality of the communication occurred in one sitting.[57]

 

 

 

1. Evidence Code sections 960 and 961

Section 960- No privilege as to communication relevant to an issue concerning the INTENTION OF A CLIENT, now deceased, with respect to a writing, executed by a client, purporting to affect an interest in property

Section 961 - No privilege as to communication relevant to an issue concerning the VALIDITY of a writing, executed by a client, now deceased, purporting to affect an interest in property

The exceptions to the attorney-client privilege found in Evidence Code sections 960 and 961 are sufficiently similar as to be analyzed jointly.  Section 960 concerns the intention of a deceased client regarding a deed of conveyance, will, or other writing, and section 961 concerns the validity of a deed of conveyance, will, or other writing executed by the deceased client.  These exceptions are also similar to Evidence Code section 959, but with two key differences.  First, sections 960 and 961 do not require the lawyer be an attesting witness.  Second, sections 960 and 961 only concern deceased clients.

The similarities between sections 960 and 961 gave rise to joint Law Revision Commission comments.[58]  The Commission’s comments explain the purpose of sections 960 and 961 by stating:

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 in cases where the lawyer is an attesting witness. See the Comment to Evidence Code § 959.[59]

 

 

 The Commission’s comments carry great weight as there is little case law interpreting sections 960 and 961.[60]  Because of the comments’ reference to section 959, the DP Pham court interpreted the comments to mean that sections 960 and 961 should be narrowly interpreted to apply only to the type of communication about which an attesting witness would testify.[61]  The rationale seems to be that because section 959 concerns attesting witness-esque communications, sections 960 and 961 should also be limited to attesting witness-esque communications.  Such an interpretation severely narrows what appears to be relatively broad exceptions found in sections 960 and 961.

For instance, in DP Pham, the deceased client’s attorney sent an email and letter to the client regarding the potential sale of the client’s mobile home park.[62]  The court held that these communications did not fall within the exceptions found in sections 960 and 961 because there was “no showing these communication concern communications about which an attesting witness would testify.”[63]  Both the communications occurred before the client actually entered into a purchase agreement.[64]  The court acknowledged the communications “would reflect general information about Obarr’s intent concerning the Property’s sale…”[65]  However, the court held that applying sections 960 and 961 to the communications would essentially eliminate the privilege with respect to the purchase agreement, a result well beyond the intended scope of the exceptions.[66]

Was the DP Pham court correct? Why would the Legislature create sections 960 and 961 if the sections only function like attesting witness exception found in section 959 except for deceased clients?  Rather, it seems as though the facts in DP Pham are the exact type of case that gave rise to sections 960 and 961.  A client, now deceased, confusingly entered into two purchase agreement with two buyers for the same property.  That client communicated with his attorney regarding those purchase agreements.  What were the client’s true intentions?  Isn’t this exactly what section 960 would resolve?  According to the DP Pham court, no, the sacrosanct black box of attorney-client privilege must only be exposed with exceptions more narrowly interpreted than drafted.

 

Procedurally Applying the Exceptions

            The above exceptions to the attorney-client privilege are applied after the holder of the privilege has refused to disclose the communication on the basis of privilege.  For instance, a litigator may issue a subpoena to the estate planning attorney for the decedent.  The estate planning attorney may claim the privilege on behalf of his deceased client.[67]  Ultimately, the deceased client’s personal representative, as the holder of the privilege, must direct the estate planning attorney.[68]  If the holder of the privilege claims the privilege, then the challenger may file a motion to compel disclosure. 

At that point, when a motion to compel is filed against the holder claiming the privilege, the holder has the burden of establishing the preliminary facts necessary to support the claim.[69]  The holder must show the communication was made in confidence between an attorney and the deceased client in the course of that attorney-client relationship.[70] Once the holder establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to be privileged, and the burden shifts to the challenger to establish the communication is not privileged or that an exception applies.[71] 

The challenge essentially becomes a two-step process.  First, is the basis for the claim of privilege accurate?  At this step, the challenger can proffer evidence the communication was not confidential, the communication was not made between an attorney and client, or the communication was not made in the course of the attorney-client relationship.  The incredibly difficult aspect for the challenger is that the evidence proffered at this first step cannot be the communication itself.  

As explained earlier, courts are prohibited from reviewing the communication to determine the claim of privilege.[72]  Rather, courts may review the underlying facts supporting the claim, “for example, whether the attorney-client relationship existed at the time the communication was made, whether the client intended the communication to be confidential, or whether the communication emanated from the client.”[73]  For instance, a court could review the recipients of an email to determine the underlying basis for the claim of privilege.   

Thus, at the first step, the law appears quite clear the challenger cannot seek disclosure of the communication or use the communication itself as evidence to refute the privilege claim.  If the basis for the privilege cannot be refuted, then the challenger must move to the second step, applying an exception to the privilege.  The law on disclosure at this second step, however, is far more murky. 

Despite Evidence Code section 915’s seemingly absolute prohibition of in-camera review to “rule upon the claim of privilege”, courts have ordered disclosure to determine whether an exception to the privilege applies.[74]  Essentially, a distinction is made between evidence to determine the foundational elements for the privilege claim and evidence to determine the applicability of an exception to the privilege. 

One could strongly argue this distinction is necessary because some of the exceptions to the privilege actually depend on the content of the communication.  For example, the attesting witness exception found in Evidence Code section 959 applies to “the type of communication about which an attesting witness would testify.”[75]  It is difficult, if not impossible, to imagine how this exception could be established without reviewing the actual communication.  This is precisely why the court in Estate of Kime parsed through the allegedly privileged communication and held much of it was in fact privileged because it was beyond the type of communication about which an attesting witness would testify.[76]

Despite the rationale in OXY and Cornish, the court in DP Pham opined that this distinction when applying Evidence Code section 915 is no longer good law after Costco.[77]  The DP Pham court interpreted the Supreme Court’s Costco opinion as disapproving of the disclosure in OXY, describing the disclosure in OXY as “inappropriate.”[78]  This interpretation, however, goes too far.  In actuality, the Supreme Court held that disclosure of the allegedly privileged communication is appropriate after a court has determined an exception applies generally.[79]   While the Costco opinion expressly disapproved of other cases in the very preceding paragraphs, no such language is used with respect to OXY and Cornish.[80]  Moreover, the Supreme Court in Costco was not ruling on whether an exception to the privilege applied.[81]  If anything, OXY and Cornish were inapposite with regard to the issue in Costco, but not disapproved. 

            Nevertheless, the aftermath from Costco and DP Pham leave something to be desired when determining whether disclosure of the allegedly privileged communication is appropriate to determine the applicability of an exception to the privilege.  The Supreme Court has left us with the vague direction that disclosure is appropriate after a court determines “an exception applies generally.”[82]  When does an exception apply generally? It seems only further litigation or legislative action will define this nuance.

 

 

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[1] See, e.g., People v. Flores (1977) 71 Cal.App.3d 559, 565 [“The privilege of confidential communication between client and attorney should…be regarded as sacred.”].

[2] Evid. Code, sections 950 and 951.  The Evidence Code uses the term “lawyer”, but case law often uses the term “attorney.”  This article will use the term “attorney.”

[3] Evid. Code, section 950. 

[4] See Fox v. Pollack (1986) 181 Cal.App.3d 954, 959.

[5] Evid. Code, section 951; People v. Gionis (1995) 9 Cal.4th 1196, 1208; see also People v. Canfield (1974) 12 Cal.3d 699, 705 [“The lawyer-client privilege is, indeed, so extensive that where a person seeks the assistance of an attorney with a view to employing him professionally, any information acquired by the attorney is privileged whether or not actual employment results.”].

[6] People v. Gionis, supra, 9 Cal.4th at p. 1210 [“…neither the relevant statutory provisions nor California decisional law suggest that the privilege extends to disclosures made after the attorney refuses to undertake representation.”].

[7] Evid. Code, section 952. 

[8] Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 735-736 (“Costco”); Clark v. Superior Court (2011) 196 Cal.App.4th 37, 50-51 (“Clark”).

[9] Evid. Code, section 915; Costco, supra, at pp. 731-732, 736; League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 989-990.

[10] Clark, supra, at p. 51.

[11] Costco, supra, 47 Cal.4th 725 at p. 735.

[12] Costco, supra, 47 Cal.4th 725 at p. 741.

[13] Evid. Code, section 952. 

[14] Ibid.

[15] Evid. Code, section 950.

[16] Evid. Code, section 951; People v. Gionis, supra, 9 Cal.4th 1196 at pp. 1208, 1210.

[17] Costco, supra, 47 Cal.4th 725 at pp. 735-736.

[18] Evid. Code, section 952

[19] Evid. Code, section 953, subd. (c). 

[20] Evid. Code, section 957.

[21] See, e.g., DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 669-670 [“There is no California case law interpreting section 957’s relevant language… .”] (“DP Pham”). 

[22] Fletcher v. Superior Court (1996) 44 Cal.App.4th 773, 778 (“Fletcher”).

[23] DP Pham, supra, at p. 670.

[24] Fletcher, supra, 44 Cal.App.4th 773 at p. 778.

[25] Id. at p. 776.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Id. at p. 778.

[32] Fletcher, supra, 44 Cal.App.4th 773 at p. 778.

[33] Id. at p. 780.

[34] Id. at p. 776.

[35] DP Pham, supra, 246 Cal.App.4th 653 at p. 670.

[36] Ibid [quoting Cal. Law Revision Com. com., 29B pt. 3A, West’s Ann. Evid. Code (2009 ed.) foll. §957, p. 387, second italics added].

[37] DP Pham, supra, 246 Cal.App.4th 653 at p. 670, quoting Recommendation: Attorney-Client Privilege After Client’s Death (Feb. 2009) 38 Cal. Law Revision Com. Rep. (2008) p. 166, 196 [italics added for emphasis].

[38] DP Pham, supra, 246 Cal.App.4th 653 at p. 660.

[39] Id. at p. 661.

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] Id. at p. 669.

[45] Id. at p. 671.

[46] Ibid.

[47] Id. at p. 670.

[48] Id. at p. 670.

[49] Id. at p. 671.

[50] Ibid.

[51] Ibid.

[52] Fletcher, supra, 44 Cal.App.4th 773 at p. 778.

[53] Evid. Code, section 959.

[54] 7 Cal. Law Revision Com. Rep. (1965) p. 1170, reprinted in Deering’s Ann. Evid. Code (Lexis Advance through all 2016 legislation and propositions (2016 Regular and 2015-2016 2nd Ex. Sessions)) foll. § 959.

[55] Estate of Kime (1983) 144 Cal.App.3d 246, 257.

[56] Id. at p. 256, fn. 5 [citing 4 Wigmore, Evidence (Chadbourn rev. 1972) § 1292, pp. 707-708].

[57] See, e.g., Estate of Kime, supra, 144 Cal.App.3d 246 at p. 258.

[58] See DP Pham, supra, 246 Cal.App.4th 653 at p. 672.

[59] Cal. Law Revision Com., com. 29B pt. 38, West’s Ann. Evid. Code (2009 ed.) foll. § 960, p. 394.

[60] See DP Pham, supra, 246 Cal.App.4th 653 at p. 672 [“As with section 957’s exception, there is no case law construing the language of these statutes…”].

[61] Id. at p. 673.

[62] Ibid.

[63] Ibid.

[64] Ibid.

[65] DP Pham, supra, 246 Cal.App.4th 653 at p. 673.

[66] Id. at pp. 673-674.

[67] Evid. Code, section 954, subd. (c).

[68] See Evid. Code, sections 953, subd. (c) and 954, subd. (c).

[69] Costco, supra, 47 Cal.4th 725 at p. 733.

[70] See Evid. Code, section 917.

[71] Ibid; Costco, supra, 47 Cal.4th 725 at p. 733.

[72] Evid. Code, section 915; Costco, supra, 47 Cal.4th 725 at pp. 731-732, 736; DP Pham, supra, 246 Cal.App.4th 653 at p. 660.

[73] Costco, supra, 47 Cal.4th 725 at p. 737.

[74] See Oxy Resources California, LLC v. Superior Court (2004) 115 Cal.App.4th 874, 896 (“OXY”); Cornish v. Superior Court (1989) 209 Cal.App.3d 467, 480 (“Cornish”).

[75] 7 Cal. Law Revision Com. Rep. (1965) p. 1170, reprinted in Deering’s Ann. Evid. Code (Lexis Advance through all 2016 legislation and propositions (2016 Regular and 2015-2016 2nd Ex. Sessions)) foll. § 959.

[76] Estate of Kime, supra, 144 Cal.App.3d 246 at pp. 257-258.

[77] DP Pham, supra, 246 Cal.App.4th 653 at p. 666.

[78] DP Pham, supra, 246 Cal.App.4th 653 at p. 666.

[79] Coscto, supra, 47 Cal.4th 725 at p. 740.

[80] Ibid.

[81] Id. at p. 731

[82] Id. at p. 740.