Brown v. Superior Court In and For Butte County

• Decision Date: 19 July 1963
• Docket Number: No. 37080,37080
• Citation: 32 Cal.Rptr. 527,218 Cal.App.2d 430
• Parties: Dollie M. BROWN, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF BUTTE, Respondent; Jack C. FOLEY, Defendant in Civil Action, in the Superior Court of the State of California, In and For the County of Butte, Real Party in Interest. Civ. 10638.
• Court: California Court of Appeals Court of Appeals

Page 527

32 Cal.Rptr. 527

218 Cal.App.2d 430

Dollie M. BROWN, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF BUTTE, Respondent Jack C. FOLEY, Defendant in Civil Action No. 37080, in the Superior Court of the State of California, In and For the County of Butte, Real Party in Interest.

Civ. 10638.

District Court of Appeal, Third District, California.

July 19, 1963.

Hearing Denied Sept. 11, 1963.

A. John Merlo, Chico, for appellant.

Raymond A. Leonard, Oroville, Peart, Baraty & Hassard, by Alan Bonnington, San Francisco, for real party in interest.

PIERCE, Presiding Justice.

We granted a rehearing in this case for the following reason:

The opinion deals with the correctness of respondent trial court's ruling in a malpractice action denying discovery to plaintiff by interrogatories of the transactions at a certain meeting of doctors with defendant and his attorney. The original opinion not only disposed of specific questions of discoverability now raised. It also suggested the extent and limits of future discovery procedures open to plaintiff. ¹ The suggestion was indefinite as to the nature and extent of these procedures; necessarily so since the ultimate wording and fate of a bill pending before the Legislature amending Code of Civil Procedure section 2016 and adding Section 2036 was then unknown. The bill, three times amended, passed and has been signed by the Governor as Chapter 1744, Statutes 1963. In its adopted from it requires no revision of our views but permits us to discuss the further avenues of discovery available in this litigation without wondering whether our expressions would become vestigial before the remittitur. We will discuss below the new legislation in its relation to this controversy.

Petitioner served interrogatories on the doctor-defendant real party in interest pursuant to Code of Civil Procedure section 2030 and designated also Raymond A. Leonard, defendant's attorney, as one of the persons to answer said interrogatories. Defendant moved to quash. The grounds were that the interrogatories called for information protected (1) under the attorney-client privilege and (2) by the 'work product' rule. Respondent court denied the motion as to some of the questions, granted it as to others. The prohibited questions demanded information regarding a certain meeting between defendant, defendant's attorney, a committee of doctors and others at which matters relevant to plaintiff's complaint were discussed.

The writ petitioned for here is an appropriate procedure to test the trial court's rulings and we issued an order to show cause for the reason that the questions have novelty. (Oceanside Union School District v. Superior Court, 58 Cal.2d 180, 185, note 4, 23 Cal.Rptr. 375, 373 P.2d 439.)

The petition alleges:

'* * * The questions quashed concerned what occurred at a Butte County Medical meeting, and the answers thereto are necessary so that Plaintiff can adequately cross-examine Dr. Jack C. Foley and also learn the opinion of the experts who heard the facts as presented by Dr. Foley. It is almost impossible for Plaintiff to obtain expert testimony in any other manner because of the notorious declination of one medical doctor to testify against another.'

The petition has attached to it the memorandum of the trial court and the interrogatories in question. It does not contain the evidence before the trial court when the motion was heard. Real party in interest has supplied that omission. Attached to his memorandum of points and authorities is the affidavit of Raymond A. Leonard, attorney for defendant Foley. There was no counteraffidavit. The trial court's memorandum opinion was also furnished us.

From the affidavit and memorandum we learn that the meeting mentioned in the petition had the origin and purpose as follows:

A policy of malpractice insurance insuring defendant physician, himself a member of the Butte County Medical Society, was issued under a master plan covering said members, or some of them, generally. The insurer, by the terms of the plan, furnished an attorney to represent the insured doctor in connection with any claim or suit for malpractice. The society, also by the policy terms, was required to name a committee of doctors. When a suit was filed it was the function of said committee to meet with the insured doctor and his attorney, to hear the former's version of the litigated accident, to interrogate him, review the other evidence, discuss, advise, and make recommendations to the attorney, thus assisting him in an understanding of the case, in evaluating it for settlement, and in preparation for trial.

Under the policy the insured is required to cooperate with the insurer and with the committee. The insurer agrees not to settle any claim without the consent of the insured or the committee and the insurer must defend any claim or suit at the desire of the insured and the committee.

At the meeting held in this case, called by Mr. Leonard, said attorney was present, also a representative of the insurance company. The members of the doctor-committee were present. The memorandum of the trial court states '[t]hat information was furnished to said committee from the confidential reports of the investigator for said insurance company and from the statements of Dr. Foley acquired pursuant to the provisions of the policy. Further, that Dr. Foley was present for a short time to explain and further expand on the information in his report to the insurance company and his attorney and to answer questions in connection therewith. * * * That after the medical society meeting all information adduced at said meeting was turned over and delivered to [the attorney] for the purpose of assisting in the defense of the claim.'

It was alleged in Mr. Leonard's affidavit that the transactions at the meeting were for the purpose of providing the attorney with information to be used by him in evaluating and defending plaintiff's claim and to determine whether it should be compromised. It is stated: 'That all statements made were intended to be, and were, in fact, confidential communications between the attorney and client and all information obtained at said committee meeting was * * * for the purpose of providing the attorney with information and evidence for the proper defense of said claim and was given to said attorney in the course of his professional employment.'

There were 56 interrogatories proposed. The court ordered defendant to answer questions 1-16, 20-30, 50-56, and that portion of the order is not challenged by defendant. Since these proceedings were instituted, he has also stipulated that certain questions not ordered by the court to be answered will be answered. These are questions 36, 38, 45 and 46. Questions 1-16 relate to matters other than the transactions during the meeting in question. Questions 20-30 relate to the time, date, names, residences and professional addresses of the doctors present; also their specialities, if any. Questions 36, 38, 45 and 46 seek the names of lay persons present. Questions 50-56 seek information as to whether plaintiff herself was present and whether she gave a statement; if so, its whereabouts.

The questions to which defendant's objections were sustained, 17-19 and 31-49 (excepting those above noted), relate to the substance of the 'decision of this grievance committee,' what the several members thereof stated, what they recommended--including a possibly recommended settlement figure--how the vote stood on such recommendations, and whether the statements at the hearing were reported, taped or otherwise recorded.

As stated above the motion to quash was based upon two contentions: (1) that the subject matter was protected under the attorney-client privilege; (2) that it was non-discoverable under the 'work-product' rule.

In discussing the questions raised by these contentions some preliminary observations seem necessary. These relate to one public policy favoring discovery and one, sometimes two, countervailing public policies which restrict discovery. These opposing policies are usually at least a background accompaniment to a consideration of these discovery problems. The first is the public policy, a modern one, which prompted the Legislature to design the new discovery procedures of the Code of Civil Procedure in sections 2016-2034 based upon the Federal Rules (which were expanded). This policy is expounded with elaboration in California in the 'pilot' case of Greyhound Corporation v. Superior Court, 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266 stating that the procedures were designed both to streamline and take the "game' element' out of trial preparation; to prevent surprise at trial; but without intent to destroy the general adversary nature of litigation. Greyhound on page 377 of 56 Cal.2d, on page 99 of 15 Cal.Rptr., on page 275 of 364 P.2d quotes from Professor Louisell, "* * * a law suit should be an intensive search for the truth, not a game to be determined in outcome by considerations of tactics and surprise. * * * [but there is] nothing in these rules at odds with the fundamentals of the common law method of adversary adjudication. There is nothing in these rules to suggest a retreat from the common law's hard-headed conception of litgation as adversary and competitive, and from its historic notion that a struggle--warfare, if you will--between vitally interested partisans, is most apt to expose the truth."

The second public policy is that which justifies the attorney-client privilege. It is described by Justice Traynor in City and County of San Francisco v. Superior Court, 37 Cal.2d 277, at page 235, 231 P.2d 26, at page 30. It is said to be a privilege founded upon a 'belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.'

And the court states (on page 235 of 37 Cal.2d, on ...