party opposing privilege in California

2016As our high court long ago 3 explained, “when the [party who carries the burden] has proved or the [opposing party] has conceded” an element of a claim “a prima facie case . . . is thereby made, which discharges the burden of proof.” (Graham v. Larimer (1890) 83 Cal. 173, 177-178 , italics added; accord, Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123 [the opposing party’s “concession established the facts necessary to support a prima facie claim of privilege . . . and passed the burden to [the party opposing privilege]”].) The function of pleadings is to aid t

2004OXY relies heavily on Evidence Code section 917, which provides: “Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of the privilege has the burden of proof to establish that the communication was not confidential.” The party asserting the privilege need only present facts which “support a prima facie claim of privilege.” (Wellpoint Health Networks, Inc. v. Superior Court (1997

2004(Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 824-825 [ 203 Cal.Rptr. 752 ].) After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.

2004(Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 824-825 [ 203 Cal.Rptr. 752 ].) After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.

2004OXY relies heavily on Evidence Code section 917, which provides: “Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of the privilege has the burden of proof to establish that the communication was not confidential.” The party asserting the privilege need only present facts which “support a prima facie claim of privilege.” (Wellpoint Health Networks, Inc. v. Superior Court (1997

1997(Ibid.; see BP Alaska, supra, 199 Cal.App.3d at p. 1252 [holding that party claiming privilege could not be “faulted for failing to make an adequate evidentiary showing when there was no apparent need to do so” because opposing party did not challenge the conclusion that the documents at issue contained attorney impressions, opinions, and legal *124 theories].) “The party opposing the privilege must bear the burden of showing that the claimed privilege does not apply or that an exception exists or that there has been an expressed or implied waiver. [Citation.]” (Lipton v. Superior Court, supra

2021Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8 [“The running of the statute of limitations is an affirmative defense . . . and the burden of proving it has run, therefore, is on the party opposing the claim” (citation omitted)].) In a FEHA harassment case based on a failure to promote, an element of the statute of limitations defense is that the plaintiff knew or should have known about the employer’s adverse promotion decision more than one year (or now, three years) before filing his or her administrative complaint. (§ 12960, former subd. (d); see § 12960, subd. (e).) The burden is on the defend

2016(People v. Duvall (1995) 9 Cal.4th 464, 480 (Duvall) [habeas pleadings “fulfill [the] function of narrowing the facts and issues to those that are truly in dispute”].) “The initial screening of the petition for resentencing is similar to the initial screening of a petition for writ of habeas corpus.

2015Analysis “In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege. [Citation.] The necessary preliminary facts include the existence of the attorney-client relationship at the time the confidential communication was made. [Citation.] After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.

2011Once a party establishes that a privilege applies, the burden shifts to the party opposing the privilege to demonstrate that the privilege did not apply, that an exception existed, or that there was an express or implied waiver.” (Tritek Telecom, Inc. v. Superior Court (2009) 169 Cal.App.4th 1385, 1389-1390 [ 87 Cal.Rptr.3d 455 ].) In McDermott , the court explained that while shareholders “ ‘stand in the shoes’ ” of the corporation for most purposes, “the one notable exception is with respect to the attorney-client privilege.” (McDermott, supra, 83 Cal.App.4th at p. 383 .) “It is the corporat

2011Once a party establishes that a privilege applies, the burden shifts to the party opposing the privilege to demonstrate that the privilege did not apply, that an exception existed, or that there was an express or implied waiver.” (Tritek Telecom, Inc. v. Superior Court (2009) 169 Cal.App.4th 1385, 1389-1390 [ 87 Cal.Rptr.3d 455 ].) In McDermott , the court explained that while shareholders “ ‘stand in the shoes’ ” of the corporation for most purposes, “the one notable exception is with respect to the attorney-client privilege.” (McDermott, supra, 83 Cal.App.4th at p. 383 .) “It is the corporat

2006Rather, other instructions reinforced the error by informing the jury that a presumption arises where the court instructs that it exists and “[i]f a presumption arises, the party opposing the presumption then has the burden to overcome it by a preponderance of the evidence.” Likewise, in closing argument Fuller-Austin’s counsel focused the jury on the erroneous instruction, stating: “[T]he court told you yesterday the court has determined that the asbestos bodily injury claims resolved in the bankruptcy proceedings are presumed to be harm within the coverage provided by the insurance policies

2006Rather, other instructions reinforced the error by informing the jury that a presumption arises where the court instructs that it exists and “[i]f a presumption arises, the party opposing the presumption then has the burden to overcome it by a preponderance of the evidence.” Likewise, in closing argument Fuller-Austin’s counsel focused the jury on the erroneous instruction, stating: “[T]he court told you yesterday the court has determined that the asbestos bodily injury claims resolved in the bankruptcy proceedings are presumed to be harm within the coverage provided by the insurance policies

2004Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052 [ 233 Cal.Rptr. 825 ].) The party opposing the privilege bears the burden of showing that there has been an implied waiver.

2004Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052 [ 233 Cal.Rptr. 825 ].) The party opposing the privilege bears the burden of showing that there has been an implied waiver.

2001It appears, therefore, that the probable *1091 cause showing to obtain a search warrant does not satisfy the showing required to establish the crime-fraud exception to the attorney-client privilege.” (People v. Superior Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, 1768-1769 [ 44 Cal.Rptr.2d 734 ], citations omitted.) Here, there was no prima facie showing to support a finding of the crime/fraud exception.

2001It appears, therefore, that the probable *1091 cause showing to obtain a search warrant does not satisfy the showing required to establish the crime-fraud exception to the attorney-client privilege.” (People v. Superior Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, 1768-1769 [ 44 Cal.Rptr.2d 734 ], citations omitted.) Here, there was no prima facie showing to support a finding of the crime/fraud exception.

1997(Ibid.; see BP Alaska, supra, 199 Cal.App.3d at p. 1252 [holding that party claiming privilege could not be “faulted for failing to make an adequate evidentiary showing when there was no apparent need to do so” because opposing party did not challenge the conclusion that the documents at issue contained attorney impressions, opinions, and legal *124 theories].) “The party opposing the privilege must bear the burden of showing that the claimed privilege does not apply or that an exception exists or that there has been an expressed or implied waiver. [Citation.]” (Lipton v. Superior Court, supra

1996Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729 [ 36 Cal.Rptr. 468 , 388 P.2d 700 ].) The party opposing the privilege must bear the burden of showing that the claimed privilege does not apply or that an exception exists or that there has been an expressed or implied waiver.

1996Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729 [ 36 Cal.Rptr. 468 , 388 P.2d 700 ].) The party opposing the privilege must bear the burden of showing that the claimed privilege does not apply or that an exception exists or that there has been an expressed or implied waiver.

1995In support of his motion to quash the People's subpoena, he filed a declaration stating that he was a news reporter employed by the Bakersfield Californian Newspaper, that his sources for the February 12, 1988, and April 25, 1988, articles on defendant "[were] the source or sources of some information, procured while so connected or employed, for publication in the newspaper." Trihey also declared that the information gathered for the stories "[was] unpublished and [had] not been disseminated to the public... except for the specific information published in said news article," and that "[a]ll

1995In support of his motion to quash the People's subpoena, he filed a declaration stating that he was a news reporter employed by the Bakersfield Californian Newspaper, that his sources for the February 12, 1988, and April 25, 1988, articles on defendant "[were] the source or sources of some information, procured while so connected or employed, for publication in the newspaper." Trihey also declared that the information gathered for the stories "[was] unpublished and [had] not been disseminated to the public... except for the specific information published in said news article," and that "[a]ll

1995The procedure for obtaining a search warrant involves an ex parte presentation to the magistrate of an affidavit by the law enforcement officer seeking the warrant and requesting the magistrate to issue the warrant based on “ ‘the probability, and not a prima facie showing, of criminal activity . . . .’ [Citations.]” (Illinois v. Gates (1983) 462 U.S. 213, 235 [ 76 L.Ed.2d 527, 546 , 103 S.Ct. 2317 ]; People v. Von Villas (1992) 11 Cal.App.4th 175, 217 [ 15 Cal.Rptr.2d 112 ] [“To establish probable cause, one must show a probability of criminal activity; a prima facie showing is not required.”

1995The procedure for obtaining a search warrant involves an ex parte presentation to the magistrate of an affidavit by the law enforcement officer seeking the warrant and requesting the magistrate to issue the warrant based on “ ‘the probability, and not a prima facie showing, of criminal activity . . . .’ [Citations.]” (Illinois v. Gates (1983) 462 U.S. 213, 235 [ 76 L.Ed.2d 527, 546 , 103 S.Ct. 2317 ]; People v. Von Villas (1992) 11 Cal.App.4th 175, 217 [ 15 Cal.Rptr.2d 112 ] [“To establish probable cause, one must show a probability of criminal activity; a prima facie showing is not required.”

1995The procedure for obtaining a search warrant involves an ex parte presentation to the magistrate of an affidavit by the law enforcement officer seeking the warrant and requesting the magistrate to issue the warrant based on “ ‘the probability, and not a prima facie showing, of criminal activity . . . .’ [Citations.]” (Illinois v. Gates (1983) 462 U.S. 213, 235 [ 76 L.Ed.2d 527, 546 , 103 S.Ct. 2317 ]; People v. Von Villas (1992) 11 Cal.App.4th 175, 217 [ 15 Cal.Rptr.2d 112 ] [“To establish probable cause, one must show a probability of criminal activity; a prima facie showing is not required.”

1995The procedure for obtaining a search warrant involves an ex parte presentation to the magistrate of an affidavit by the law enforcement officer seeking the warrant and requesting the magistrate to issue the warrant based on “ ‘the probability, and not a prima facie showing, of criminal activity . . . .’ [Citations.]” (Illinois v. Gates (1983) 462 U.S. 213, 235 [ 76 L.Ed.2d 527, 546 , 103 S.Ct. 2317 ]; People v. Von Villas (1992) 11 Cal.App.4th 175, 217 [ 15 Cal.Rptr.2d 112 ] [“To establish probable cause, one must show a probability of criminal activity; a prima facie showing is not required.”

1995Forum selection clauses are “prima facie valid, and are enforceable absent a strong showing by the party opposing the clause ‘that enforcement would be unreasonable or unjust, or that the clause [is] invalid for such reasons as fraud or overreaching.’ ” (Manetti-Farrow, Inc. v. Gucci America, Inc., supra, 858 F.2d at p. 514 , quoting The Bremen v. Zapatta Off-Shore Co. supra, 407 U.S. at p. 15 [ 32 L.Ed.2d at p. 523 ].) The opposing party has the burden of showing the contract forum to be so “ ‘gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in

1995Forum selection clauses are “prima facie valid, and are enforceable absent a strong showing by the party opposing the clause ‘that enforcement would be unreasonable or unjust, or that the clause [is] invalid for such reasons as fraud or overreaching.’ ” (Manetti-Farrow, Inc. v. Gucci America, Inc., supra, 858 F.2d at p. 514 , quoting The Bremen v. Zapatta Off-Shore Co. supra, 407 U.S. at p. 15 [ 32 L.Ed.2d at p. 523 ].) The opposing party has the burden of showing the contract forum to be so “ ‘gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in