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Mwaniki v. eBay9/23/2005
n the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review." (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
Nowhere does plaintiff frame an abuse-of-discretion argument. Instead of focusing on the factors supporting the trial court's decision and explaining why it was irrational to rely on those factors, she merely reargues that there is an inference that Chambers informed Murray about the investigation and defendant should not be able "to use the attorney client privilege to cover up discrimination and to subsequently orchestrate the retaliatory discharge of employees who give favorable testimony."
"Arguments should be tailored according to the applicable standard of appellate review." (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388.) Failure to acknowledge the proper scope of review is a concession of a lack of merit. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) " ` t is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent. An appellant is not permitted to evade or shift his [or her] responsibility in this manner.' [Citations.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.)
We nevertheless observe that plaintiff could not demonstrate that the trial court's decision was beyond reason.
Compelled testimony of opposing counsel is presumptively improper and should be ordered only when (1) the proponent of the testimony cannot otherwise obtain the information, (2) the information is non-privileged, and (3) the information is crucial to the case. (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493-1496.)
Here, the trial court was entitled to conclude that what Chambers told Murray about the investigation into the contractor's discrimination claim was a communication relating to legal work rather than routine factfinding on behalf of defendant's personnel department. Such a communication is protected by the attorney-client privilege. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119-124.) It was therefore not irrational to prevent plaintiff from compelling Chambers to testify.
" ` he [attorney-client] privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.' [Citation.] `Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. . . . "The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence." [Citations.]' [Citation.]" (2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1388.) disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.
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