Moeller

I respectfully dissent.

The majority opinion departs from this court’s consistent deference to the Legislature’s prerogative in defining and controlling evidentiary privileges. The Evidence Code specifically states that “[t]he provisions of Division 8 (commencing with Section 900) relating to privileges shall govern any claim of privilege . . . .” (Evid. Code, § 12, subd. (c).) “Thus, the Legislature has codified, revised, or supplanted any privileges previously available at common law: the courts are no longer free to modify existing privileges or to create new privileges. [Citation.]” (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ].) As Justice Mosk stated for a unanimous court: “Our deference to the Legislature is particularly necessary when we are called upon to interpret the attorney-client privilege, because the Legislature has determined that evidentiary privileges shall be available only as defined by statute. (Evid. Code, § 911.)” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373 [ 20 Cal.Rptr.2d 330 , 853 P.2d 496 ].) Except as required by constitutional law, the courts may neither add to the statutory privileges nor imply…

*1127 Opinion

In this proceeding for an accounting, the successor trustee of a private express trust seeks to discover from the predecessor trustee documents reflecting confidential communications between the predecessor and an attorney on matters of trust administration. The question before us is whether the predecessor trustee may assert the attorney-client privilege as to such documents and thereby withhold them from the successor. We conclude the answer is no. Upon taking office, a successor trustee assumes all of the powers of trustee, including the power to assert the attorney-client privilege as to confidential communications on the subject of trust administration. Therefore, we affirm the judgment of the Court of Appeal.

Factual and Procedural Background

George J. Moeller and his wife, Grace Todd Moeller, as trustors, established a trust. Initially George was trustee; later, real party in interest Sanwa Bank (hereafter Sanwa) succeeded to this position. Among the beneficiaries of the trust is the Moellers’s son, petitioner Roger D. Moeller (hereafter Moeller). The trust property consisted of certain interests in real estate in Southern California, including an undivided…