Clark v. Superior Court of State In and For San Mateo County

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN
• Citation: Clark v. Superior Court of State In and For San Mateo County, 2 Cal.Rptr. 375, 177 Cal.App.2d 577 (Cal. App. 1960)
• Decision Date: 01 February 1960
• Parties: Donald CLARK, Petitioner, v. SUPERIOR COURT OF STATE of California, in and for COUNTY OF SAN MATEO, and Honorable A. O. Cotton, Judge Thereof, Respondents, and Arthur J. Swanson and Eleanor Swanson, Real Parties in Interest. Civ. 19134.

Page 375

2 Cal.Rptr. 375

177 Cal.App.2d 577

Donald CLARK, Petitioner, v. SUPERIOR COURT OF STATE of California, in and for COUNTY OF SAN MATEO, and Honorable A. O. Cotton, Judge Thereof, Respondents and Arthur J. Swanson and Eleanor Swanson, Real Parties in Interest.

Civ. 19134.

District Court of Appeal, First District, Division 2, California.

Feb. 1, 1960.

Hearing Denied March 30, 1960.

Hoberg, Finger, Brown & Abramson, San Francisco, for petitioner.

Alexander, Bacon & Mundhenk, San Francisco, for real parties in interest.

KAUFMAN, Presiding Justice.

The petitioner is the plaintiff in a personal injury action pending in the superior court against Arthur J. Swanson and Eleanor Swanson, the real parties in interest.

Plaintiff, on April 15, 1958, was employed by the defendants for the purpose of performing work on the roof of their home. In connection with this work defendants furnished plaintiff with a ladder for his use in ascending to the roof of their home. While plaintiff was ascending the ladder, the bottom of it slid backwards causing him to fall. He landed on top of the ladder sustaining injuries. Plaintiff alleges in his complaint that his injuries resulted from the fact that the said ladder was dangerous and unsafe in that it did not rest securely upon the ground. Defendants answered the complaint denying negligence and alleging the defense of unavoidable accident and contributory negligence.

On or about April 21, 1958, an investigator for the defendants' liability insurance company contacted the plaintiff. This investigator, accompanied by a shorthand reporter, asked plaintiff questions concerning the circumstances of his fall and injuries. The questions and answers were recorded. This unsigned statement is in the possession, custody and control of the insurance company's general counsel.

On November 25, 1959, plaintiff filed a 'Notice of Motion to Inspect, Photograph and Copy' this stenographic statement and an affidavit alleging that the above questions and answers were recorded; that he does not recall the questions asked of him nor his answers; and that he has not been given a copy of the transcription of these recorded questions and answers. He further alleges that his attorney has requested a copy of said transcript but that said request was refused.

A hearing on the above motion was held in the respondent superior court on December 1, 1959, and the motion was denied. Plaintiff now seeks a writ of mandamus requiring the respondent court to order the inspection, photographing and copying of the said statement.

Section 2031 of the Code of Civil Procedure under which the above motion was made provides in part:

'Upon motion of any party showing good cause therefor * * * the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing * * * of any designated documents * * * relating to any of the matters within the scope of the examinationpermitted by subdivision (b) of Section 2016 of this code and which are in his possession, custody, or control * * *.'

Code of Civil Procedure, § 2016(b) provides in part:

'Unless otherwise ordered by the court * * * the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party * * *. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. All matters which are privileged against disclosure upon the trial under the law of this State are privileged against disclosure through any discovery procedure. This article shall not be construed to change the law of this State with respect to the existence of any privilege, whether provided for by statute or judicial decision, nor shall it be construed to incorporate by reference any judicial decisions on privilege of any other jurisdiction.'

Defendants argue that under section 2031 it is necessary for the plaintiff to show that the material requested is in the possession, custody or control of a party to the action. Here, it was shown that the statement is either in the possession, custody or control of the insurance company or of the company's general counsel. However, it is admitted that the liability insurance carrier is defending the personal injury action under the terms of the defendants' policy of insurance....