holder privilege in California

2009“To establish title by adverse possession, the claimant must establish five elements in connection with his occupancy of the property. [Citations.] (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. [Citations.] (2) Possession must be hostile to the owner’s title. [Citations.] (3) The holder must claim the property as his own, either under color of title, or claim of right. [Citations.] (4) Possession must be continuous and uninterrupted for five years. [Citations.] (5) The possessor must pay all of the taxes levied and assesse

2009“To establish title by adverse possession, the claimant must establish five elements in connection with his occupancy of the property. [Citations.] (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. [Citations.] (2) Possession must be hostile to the owner’s title. [Citations.] (3) The holder must claim the property as his own, either under color of title, or claim of right. [Citations.] (4) Possession must be continuous and uninterrupted for five years. [Citations.] (5) The possessor must pay all of the taxes levied and assesse

2022Adverse Possession Claim In seeking to quiet title based on adverse possession McNeal had the burden to prove every element of the claim: “(1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owner’s title. (3) The holder must claim the property as his own, under either color of title or claim of right. (4) Possession must be continuous and uninterrupted for five years. (5) The holder must pay all the taxes levied and assessed upon the property during the period.” (Dimmick v. Dimmick (1962) 58 Cal.2d

2017(Glatts v. Henson (1948) 31 Cal.2d 368, 371-372 [ 188 P.2d 745 ] (Glatts); Masin v. La Marche (1982) 136 Cal.App.3d 687, 693 [ 186 Cal.Rptr. 619 ]; Kepler, supra, 199 Cal.App.3d at p. 1386 .) “In an action to quiet title based on adverse possession the burden is upon the claimant to prove every necessary element: (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owner’s title. (3) The holder must claim the property as his own under either color of title or claim of right. (4) Possession must be co

2025(Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 49 ; see also Mitchell v. Superior Court (1984) 37 Cal.3d 591, 603 [no waiver where admission that client discussed matter with attorney “did not disclose any of the actual substance or content” of the communications].) Consent may be shown by “any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.” (Evid.

2025(Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 49 ; see also Mitchell v. Superior Court (1984) 37 Cal.3d 591, 603 [no waiver where admission that client discussed matter with attorney “did not disclose any of the actual substance or content” of the communications].) Consent may be shown by “any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.” (Evid.

2025(Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190 ; see also McDermott, supra, 10 Cal.App.5th at p. 1101 .) Rather, the court should weigh “[o]ther relevant considerations,” including “the precautions the holder took to maintain the privilege and the promptness with which the holder sought return of the inadvertently disclosed document.” (McDermott, at p. 1102.) “The law does not require that the holder of the privilege take ‘strenuous or Herculean efforts’ to resist disclosure.” (Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683 .) The question in

2025(Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190 ; see also McDermott, supra, 10 Cal.App.5th at p. 1101 .) Rather, the court should weigh “[o]ther relevant considerations,” including “the precautions the holder took to maintain the privilege and the promptness with which the holder sought return of the inadvertently disclosed document.” (McDermott, at p. 1102.) “The law does not require that the holder of the privilege take ‘strenuous or Herculean efforts’ to resist disclosure.” (Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683 .) The question in

2016Code, § 1016; Roberts v. Superior Court (1973) 9 Cal.3d 330, 340 (Roberts); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092 (San Diego Trolley).) Here, it is undisputed Father, who had sole legal custody of the children, was the holder of the privilege on their behalf and could either assert the privilege or waive it.

2015Fund).) Pertinent to our discussion, “[a] trial court called upon to determine whether inadvertent disclosure of privilege information constitutes waiver of the privilege must examine both the subjective intent of the holder of the privilege and the relevant circumstances for any manifestation of the holder’s consent to disclose the information.” (Id. at pp. 652-653; see Roberts v. Superior Court (1973) 9 Cal.3d 330, 343 [waiver of a privilege “must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences”]; Shooker v. Superior Court (

2021(Id. at p. 651.) On appeal from the trial court’s order, we held that the accidental, inadvertent disclosure of the privileged information by State Fund’s counsel did not result in a waiver by State Fund. ( 70 Cal.App.4th at p. 653 .) In reaching that conclusion, we looked to the words and conduct of State Fund, the holder of the privilege, to determine whether a waiver had occurred.

2021(See Kerner v. 12 Superior Court, supra, 206 Cal.App.4th at p. 112 ; Regents, supra, 165 Cal.App.4th at p. 679 .) Consent of the privilege holder can be “manifest[ed] through words or conduct . . . that the communication may be disclosed by another.” (State Fund, supra, 70 Cal.App.4th at p. 652 [Evidence Code section 912 “indicates that we are to look to the words and conduct of the holder of the privilege to determine whether a waiver has occurred”].) A waiver may be found “if the holder, in a proceeding in which he or she has the legal standing and opportunity to claim the privilege, fails t

2016When that privilege applies, it provides that "the patient ... has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist," if the privilege is claimed either by the holder of the privilege, by someone authorized by the holder to claim the privilege, or by the psychotherapist, unless otherwise validly instructed. ( Evid.Code, § 1014, subds. (a), (b), (c).) Section 1014 provides that the psychotherapist-patient privilege applies, "[s]ubject to Section 912 and except as otherwise provided in this article." 9 We

2016When that privilege applies, it provides that "the patient ... has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist," if the privilege is claimed either by the holder of the privilege, by someone authorized by the holder to claim the privilege, or by the psychotherapist, unless otherwise validly instructed. ( Evid.Code, § 1014, subds. (a), (b), (c).) Section 1014 provides that the psychotherapist-patient privilege applies, "[s]ubject to Section 912 and except as otherwise provided in this article." 9 We

2025(Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190 ; see also McDermott, supra, 10 Cal.App.5th at p. 1101 .) Rather, the court should weigh “[o]ther relevant considerations,” including “the precautions the holder took to maintain the privilege and the promptness with which the holder sought return of the inadvertently disclosed document.” (McDermott, at p. 1102.) “The law does not require that the holder of the privilege take ‘strenuous or Herculean efforts’ to resist disclosure.” (Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683 .) The question in

2025(Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190 ; see also McDermott, supra, 10 Cal.App.5th at p. 1101 .) Rather, the court should weigh “[o]ther relevant considerations,” including “the precautions the holder took to maintain the privilege and the promptness with which the holder sought return of the inadvertently disclosed document.” (McDermott, at p. 1102.) “The law does not require that the holder of the privilege take ‘strenuous or Herculean efforts’ to resist disclosure.” (Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683 .) The question in

2015(Ibid.) If it does, then the "party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit." (Ibid.) If that showing is made, the burden shifts to "the holder of the privilege to demonstrate any claimed disadvantages of a protective order." (Ibid.) In this writ proceeding, although Hoffman relies on section

2015(Ibid.) If it does, then the "party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit." (Ibid.) If that showing is made, the burden shifts to "the holder of the privilege to demonstrate any claimed disadvantages of a protective order." (Ibid.) In this writ proceeding, although Hoffman relies on section

1997(Holm v. Superior Court (1954) 42 Cal.2d 500, 507 [ 267 P.2d 1025 ]; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235 [ 231 P.2d 26 , 25 A.L.R.2d 1418 ].) The client may assert the privilege and refuse to disclose confidential communications as long as the client is the holder of the privilege.

1997(Holm v. Superior Court (1954) 42 Cal.2d 500, 507 [ 267 P.2d 1025 ]; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235 [ 231 P.2d 26 , 25 A.L.R.2d 1418 ].) The client may assert the privilege and refuse to disclose confidential communications as long as the client is the holder of the privilege.

2021(Lasky, supra, 172 Cal.App.3d at p. 278 [trustee’s attorney “is the sole holder of the privilege and may effectively assert it even as against a client”]; Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 101 [plaintiff could not invoke work product privilege to suppress answers given by plaintiff’s former attorney in deposition because attorney is holder of the privilege]; cf. Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 61-62 (Fellows) [work product privilege belongs to attorney, but may be waived by client in possession of the work product], disapproved on another ground in Coito, su

2017(See §§ 2018.050 [work product enabling commission of crimes not protected in official investigations], 2018.080 [“[i]n an action between an attorney and a client or a former client of the attorney, no work product privilege under this chapter exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship”].) 11 “is the sole holder of the privilege and may effectively assert it even as against a client”]; see Fellows, supra, 108 Cal.App.3d at p. 64 [client in possession of attorney work product may assert pri

2019Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 , 82 Cal.Rptr.2d 799 ( State Fund ), holding, when a lawyer comes into possession of materials that clearly appear to be protected by the attorney-client privilege and it is reasonably apparent the materials were made available through inadvertence (that is, without the holder of the privilege having waived it), the lawyer receiving the materials must refrain from examining the materials any more than is necessary to ascertain their privileged status and then must immediately notify the party entitled to the privilege about the situation. ( Rico , at

2016The 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 [ 125 Cal.Rptr.3d 361 ] (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

1979Evidence Code section 1040 “ ‘represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.’ ” (Italics in original, Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123 [ 130 Cal.Rptr. 257 , 550 P.2d 161 ], involving a claim of privilege under Gov.

1979Evidence Code section 1040 “ ‘represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.’ ” (Italics in original, Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123 [ 130 Cal.Rptr. 257 , 550 P.2d 161 ], involving a claim of privilege under Gov.

2021(Lasky, supra, 172 Cal.App.3d at p. 278 [trustee’s attorney “is the sole holder of the privilege and may effectively assert it even as against a client”]; Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 101 [plaintiff could not invoke work product privilege to suppress answers given by plaintiff’s former attorney in deposition because attorney is holder of the privilege]; cf. Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 61-62 (Fellows) [work product privilege belongs to attorney, but may be waived by client in possession of the work product], disapproved on another ground in Coito, su

2021(Lasky, supra, 172 Cal.App.3d at p. 278 [trustee’s attorney “is the sole holder of the privilege and may effectively assert it even as against a client”]; Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 101 [plaintiff could not invoke work product privilege to suppress answers given by plaintiff’s former attorney in deposition because attorney is holder of the privilege]; cf. Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 61-62 (Fellows) [work product privilege belongs to attorney, but may be waived by client in possession of the work product], disapproved on another ground in Coito, su

2020(Melendrez v. Superior Court, supra, 215 Cal.App.4th at p. 1353 ; see People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 713 [“the custodian of materials protected by an evidentiary privilege owes a duty to the holder of the privilege to claim the privilege and to take actions necessary to ensure that the materials are not disclosed improperly” (italics added)]; Civ.

2017And, as pertinent to our discussion, 'the custodian of materials protected by an evidentiary privilege owes a duty to the holder of the privilege to claim the privilege and to take actions necessary to ensure that the materials are not disclosed improperly.' [Citations.] [¶] Thus, contrary to Tucker Ellis's argument, the significance of the factual allegations relating to Tucker Ellis's response to a subpoena is to demonstrate that Tucker Ellis, as custodian of privileged attorney work product, breached a separate independent legal duty owed to Nelson 'to take appropriate steps to protect [his

2023(McDermott, supra, 10 Cal.App.5th at p. 1101 ; DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 668 (DP Pham).) Under section 912, a waiver results when the holder of the privilege, without coercion, (1) discloses a significant part of the communication, or (2) consents to the disclosure made by anyone else. (§ 912, subd. (a).) Although section 912 declares that “any uncoerced ‘disclosure’ creates a waiver, courts have consistently held that inadvertent disclosures do not.” (Newark Unified School Dist. v. Superior Court (2015) 245 Cal.App.4th 887, 900 ; McDermott, supra, 10 Cal.App.5th at p.

2017Code, § 917, subd. (a); Costco, supra, 47 Cal.4th at p. 733.) The attorney-client privilege may be waived, but only by the holder of the privilege. ( Pham, supra, 246 Cal.App.4th at p. 668.) A waiver results when the holder, without coercion, (1) has disclosed a significant part of the communication, or (2) has consented to the disclosure made by anyone else.

2020(See Lafferty, supra, 25 Cal.App.5th at p. 405 [because “[t]he California statutes providing for costs and prejudgment interest apply to actions as a whole rather than to individual causes of action such as that provided by the Holder Rule,” the Holder Rule’s limitation on recovery does not apply to costs or prejudgment interest]; § 1459.5 [authorizing recovery of a plaintiff’s costs and expenses on a Holder Rule claim without consideration of the Holder Rule’s limitation on recovery].) 14 SIMONS, J.

2020(See Lafferty, supra, 25 Cal.App.5th at p. 405 [because “[t]he California statutes providing for costs and prejudgment interest apply to actions as a whole rather than to individual causes of action such as that provided by the Holder Rule,” the Holder Rule’s limitation on recovery does not apply to costs or prejudgment interest]; § 1459.5 [authorizing recovery of a plaintiff’s costs and expenses on a Holder Rule claim without consideration of the Holder Rule’s limitation on recovery].) 14 SIMONS, J.

2021(Lasky, supra, 172 Cal.App.3d at p. 278 [trustee’s attorney “is the sole holder of the privilege and may effectively assert it even as against a client”]; Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 101 [plaintiff could not invoke work product privilege to suppress answers given by plaintiff’s former attorney in deposition because attorney is holder of the privilege]; cf. Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 61-62 (Fellows) [work product privilege belongs to attorney, but may be waived by client in possession of the work product], disapproved on another ground in Coito, su

2021(Lasky, supra, 172 Cal.App.3d at p. 278 [trustee’s attorney “is the sole holder of the privilege and may effectively assert it even as against a client”]; Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 101 [plaintiff could not invoke work product privilege to suppress answers given by plaintiff’s former attorney in deposition because attorney is holder of the privilege]; cf. Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 61-62 (Fellows) [work product privilege belongs to attorney, but may be waived by client in possession of the work product], disapproved on another ground in Coito, su

2021(See § 994 [patient can refuse to disclose and prevent another from disclosing confidential communication between patient and physician if privilege is claimed]; see also California Consumer Health Care Council, Inc. v. Department of Managed Health Care (2008) 161 Cal.App.4th 684, 694 [“physician-patient privilege survives death and the estate’s representative is the holder of the privilege”].) Thus, we conclude that the trial court did not abuse its discretion by granting the third party motion to quash trial counsel’s medical records.

2021(See § 994 [patient can refuse to disclose and prevent another from disclosing confidential communication between patient and physician if privilege is claimed]; see also California Consumer Health Care Council, Inc. v. Department of Managed Health Care (2008) 161 Cal.App.4th 684, 694 [“physician-patient privilege survives death and the estate’s representative is the holder of the privilege”].) Thus, we conclude that the trial court did not abuse its discretion by granting the third party motion to quash trial counsel’s medical records.

2025(Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190 ; see also McDermott, supra, 10 Cal.App.5th at p. 1101 .) Rather, the court should weigh “[o]ther relevant considerations,” including “the precautions the holder took to maintain the privilege and the promptness with which the holder sought return of the inadvertently disclosed document.” (McDermott, at p. 1102.) “The law does not require that the holder of the privilege take ‘strenuous or Herculean efforts’ to resist disclosure.” (Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683 .) The question in

2025(Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190 ; see also McDermott, supra, 10 Cal.App.5th at p. 1101 .) Rather, the court should weigh “[o]ther relevant considerations,” including “the precautions the holder took to maintain the privilege and the promptness with which the holder sought return of the inadvertently disclosed document.” (McDermott, at p. 1102.) “The law does not require that the holder of the privilege take ‘strenuous or Herculean efforts’ to resist disclosure.” (Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683 .) The question in

2019Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 , 82 Cal.Rptr.2d 799 ( State Fund ), holding, when a lawyer comes into possession of materials that clearly appear to be protected by the attorney-client privilege and it is reasonably apparent the materials were made available through inadvertence (that is, without the holder of the privilege having waived it), the lawyer receiving the materials must refrain from examining the materials any more than is necessary to ascertain their privileged status and then must immediately notify the party entitled to the privilege about the situation. ( Rico , at

2019Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 , 82 Cal.Rptr.2d 799 ( State Fund ), holding, when a lawyer comes into possession of materials that clearly appear to be protected by the attorney-client privilege and it is reasonably apparent the materials were made available through inadvertence (that is, without the holder of the privilege having waived it), the lawyer receiving the materials must refrain from examining the materials any more than is necessary to ascertain their privileged status and then must immediately notify the party entitled to the privilege about the situation. ( Rico , at

2021(See Kerner v. 12 Superior Court, supra, 206 Cal.App.4th at p. 112 ; Regents, supra, 165 Cal.App.4th at p. 679 .) Consent of the privilege holder can be “manifest[ed] through words or conduct . . . that the communication may be disclosed by another.” (State Fund, supra, 70 Cal.App.4th at p. 652 [Evidence Code section 912 “indicates that we are to look to the words and conduct of the holder of the privilege to determine whether a waiver has occurred”].) A waiver may be found “if the holder, in a proceeding in which he or she has the legal standing and opportunity to claim the privilege, fails t

2012(Calvert, supra, 54 Cal.3d at p. 780 .) Calvert stated: “Evidence Code section 912, subdivision (a) provides that a privilege is waived when a holder of a privilege fails to claim the privilege in a proceeding in which he or she has the standing and opportunity to do so.

2017Code, § 917, subd. (a); [citation].)” (Costco, supra, 47 Cal.4th at p. 733 .) Thus, generally speaking, the client is the holder of the privilege and, as such, has the burden of making this prima facie showing.

2017Code, § 917, subd. (a); Costco, supra, 47 Cal.4th at p. 733 .) The attorney-client privilege may be waived, but only by the holder of the privilege.

2023(McDermott, supra, 10 Cal.App.5th at p. 1101 ; DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 668 (DP Pham).) Under section 912, a waiver results when the holder of the privilege, without coercion, (1) discloses a significant part of the communication, or (2) consents to the disclosure made by anyone else. (§ 912, subd. (a).) Although section 912 declares that “any uncoerced ‘disclosure’ creates a waiver, courts have consistently held that inadvertent disclosures do not.” (Newark Unified School Dist. v. Superior Court (2015) 245 Cal.App.4th 887, 900 ; McDermott, supra, 10 Cal.App.5th at p.

2023(McDermott, supra, 10 Cal.App.5th at p. 1101 ; DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 668 (DP Pham).) Under section 912, a waiver results when the holder of the privilege, without coercion, (1) discloses a significant part of the communication, or (2) consents to the disclosure made by anyone else. (§ 912, subd. (a).) Although section 912 declares that “any uncoerced ‘disclosure’ creates a waiver, courts have consistently held that inadvertent disclosures do not.” (Newark Unified School Dist. v. Superior Court (2015) 245 Cal.App.4th 887, 900 ; McDermott, supra, 10 Cal.App.5th at p.