Schaff v. Superior Court

Opinion

THE COURT.

*

Petitioner seeks a writ of mandate directing respondent court to grant his motion to compel production of documents.

[923]

Facts

Petitioner (husband) is the respondent and real party (wife) is the petitioner in a marital dissolution proceeding pending before respondent court.

On February 7, 1983, husband served by mail upon wife a formal request to produce documents pursuant to Code of Civil Procedure

1

section 2031. The documents requested were all wills and other documents executed by wife between the date of marriage and date of separation intended to dispose of her estate upon death.

On March 10, 1983, husband filed a motion for an order compelling wife to produce the requested documents upon the ground that as of March 1, 1983, wife had failed to respond in any manner to his request.

Wife apparently filed opposition to the motion which included Attorney Charles Wilson’s declaration under penalty of perjury stating that he sent a message on January 28, 1983, in reply to husband’s letter request for wife’s will, stating in relevant part: “As to a will, you will have to provide me authority for obtaining a copy of anyone’s will under a dissolution. It is my understanding that this is a privileged document not subject to production or disclosure.”

On March 31, 1983, a hearing was held upon husband’s motion. Husband urged that wife had waived the privilege objection by failing to assert it within the time allowed by section 2031. Respondent court concluded the will was relevant, but refused to order it disclosed, apparently, because the court also concluded it was a private document.

Discussion

Wife’s claim of attorney-client privilege was not asserted within the time allowed by section 2031, subdivision (b) and, therefore, should not have been considered upon the motion to compel production of documents.