Filed 5/5/14 Meridian Bay Homeowners Assn. v Superior Court CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


MERIDIAN BAY HOMEOWNERS
ASSOCIATION,
    Petitioner,
    v.                                                               A141471
THE SUPERIOR COURT OF SAN
MATEO COUNTY,                                                        (San Mateo County
                                                                     Superior Court No. CIV 515707)
    Respondent;
SANDRA ROSENBERG,
    Real Party in Interest.


BY THE COURT:1
         Petitioners, a home owners association and board members of a condominium
complex, are defendants in a suit arising from water damage to one of the units. During
discovery, petitioners resisted productions of documents they claimed were protected by
the attorney-client privilege and work-product doctrine. The court ordered that a special
master review the documents to determine whether the privilege applied; petitioners
produced those documents over objection. The special master found some of the
documents were privileged, but ordered the redaction and release of others. The trial
court adopted the special master’s ruling, again over petitioners’ objection.



         1Before     Kline, P.J., Haerle, J., and Richman, J.


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       Challenging that ruling, petitioners sought a writ of mandate in this court asking
that we issue a peremptory writ of mandate “directing Respondent Superior Court to
vacate its order to the extent the objections of Petitioner were overruled, and the
documents were ordered produced and/or redacted, and enter an order Denying the
Motion to Enforce Compliance and Compel Production of Documents.” Real party in
interest filed “preliminary opposition” to the petition, and petitioner filed a reply. We
shall issue a peremptory writ of mandate directing the superior court to vacate its order
and to conduct a new hearing in compliance with Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal.4th 725 and its progeny.2
       In Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th 725 the California
Supreme Court prohibited the very procedure employed by the superior court in this case.
The high court held “that a court may not order [in camera] disclosure of a
communication claimed to be privileged to allow a ruling on the claim of privilege . . . .”
(Id. at p. 739.) Rather, the proper procedure is for the party claiming the privilege to
make a prima facie claim of privilege; once that has been shown “the communication is
presumed to have been made in confidence and the party opposing the claim of privilege
has the burden of establishing that the communication was not confidential or that the
privilege is inapplicable for other reasons.” (2 Jefferson Cal. Evidence Benchbook
(Cont.Ed.Bar 4th ed. 2009) Burdens of Proof and Producing Evidence, § 47.21, p. 47–14
(emphasis in original).) To that end, the court may require detailed privilege logs, and
possibly even evidence or testimony to ensure that the privilege applies to disputed


       2A   peremptory writ in the first instance is appropriate in this case. Our Supreme
Court has instructed “that a peremptory writ of mandate or prohibition [may] not issue in
the first instance unless the parties adversely affected by the writ have received notice,
from the petitioner or from the court, that the issuance of such a writ in the first instance
is being sought or considered. In addition, an appellate court, absent exceptional
circumstances, should not issue a peremptory writ in the first instance without having
received, or solicited, opposition from the party or parties adversely affected.” (Palma v.
U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Both requirements have
occurred in this case, as the prayer in the petition sought a peremptory writ in the first
instance and we have received opposition from real party.

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documents, but it may not review the documents themselves until it is determined that the
privilege does not apply. (Costco, supra, at p. 737.)
       Not only was the trial court order contrary to the rule announced in Costco, the
court erroneously found petitioner’s objection “moot” because petitioner did not seek our
review of the issue before submitting the allegedly privileged documents to the special
master. We do not understand how the trial court could find the objection “moot”
considering its awareness of Evidence Code section 919, subdivision (b), which provides
that “neither the failure to refuse to disclose [allegedly privileged information] nor the
failure to seek review of the order . . . requiring disclosure indicates consent to the
disclosure or constitutes a waiver . . . .” While the court acknowledged that section, it
nonetheless relied on the rule stated in Allin v. Internat. etc. Stage Employees (1952) 113
Cal.App.2d 135: “One who by his conduct accepts a ruling of the court under
circumstances amounting to acquiescence therein, may not complain of it on appeal.”
(Id. at p. 138.) Although not referenced in the trial court ruling, the Allin court went on to
explain that “mere silence must be taken as acquiescence when, upon appeal, the ruling is
assigned as error.” (Id. at pp. 138–139.)
       Thus, there are two fatal flaws to the trial court’s reliance on Allin. First,
petitioners were not silent and clearly did not acquiesce; rather, they objected both before
the special master’s review and afterward. Second, the general rule stated in Allin is not
applicable where, as here, Evidence Code section 919, subdivision (b) obviates the need
to object or seek review of the offending order. Thus, the trial court’s inexplicable
finding that petitioners’ objection was “moot” was error; it should have considered
petitioners’ argument on its merits. The time and money spent as a result of the court’s
failure to timely do so is regrettable.
       Let a peremptory writ of mandate issue commanding respondent superior court to
vacate its order granting discovery of the allegedly privileged documents and to conduct
a new hearing in compliance with Costco Wholesale Corp. v. Superior Court (2009) 47
Cal.4th 725 and its progeny. In so ordering the superior court to conduct the hearing, we



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express no opinion on the merits of petitioners’ assertions that the documents are
privileged or otherwise not discoverable.




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