Grand Lake Drive In, Inc. v. Superior Court In and For Alameda County

• Decision Date: 22 March 1960
• Citation: 3 Cal.Rptr. 621,86 A.L.R.2d 129,179 Cal.App.2d 122
• Court: California Court of Appeals Court of Appeals
• Parties: , 86 A.L.R.2d 129 GRAND LAKE DRIVE IN, INC., a corporation, Investment Fund, Inc., a corporation, Herman W. Lehman, Ruth H. Lehman, Joseph D. Mahoney, Phyllis M. Mahoney, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ALAMEDA, and the Honorable Charles Wade Snook, Respondents. Real Party in Interest, LaVerne Bateman. Civ. 19164.

Page 621

3 Cal.Rptr. 621

179 Cal.App.2d 122, 86 A.L.R.2d 129

GRAND LAKE DRIVE IN, INC., a corporation, Investment Fund, Inc., a corporation, Herman W. Lehman, Ruth H. Lehman, Joseph D. Mahoney, Phyllis M. Mahoney, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ALAMEDA, and the Honorable Charles Wade Snook, Respondents Real Party in Interest, LaVerne Bateman.

Civ. 19164.

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

March 22, 1960.

Daniel C. Miller, San Francisco, Myron A. Martin, Oakland, for petitioners.

Irving M. Liner, Oakland, for respondent.

DRAPER, Justice.

This original proceeding involves application of the civil discovery procedures (Code Civ.Proc. §§ 2016-2035) added in California in 1957 (Stats.1957, Ch. 1904, pp. 3321-3336) and review of the extent of the attorney-client privilege.

LaVerne Bateman, real party in interest, brought an action for damages for personal injuries allegedly sustained when she slipped and fell on the 'slick and slippery' surface of the sidewalk or 'apron' of defendant-petitioner's drive-in.

Defendant's attorney engaged a firm of testing engineers to inspect the sidewalk and apron areas of defendant's premises and to conduct 'slipperiness tests' thereon. Plaintiff took the deposition of one Cheek, who had made the inspections and tests for the engineering firm. On advice of defendant's counsel, Cheek refused to answer all questions as to the nature of the surface he found, or the nature or results of his inspection and testing. On motion of plaintiff and after hearing, the trial court ordered Cheek to answer all questions 'as to what he did, what he observed, what tests he made and how he made them,' and also, if his examination showed him qualified as an expert witness, to answer all questions 'as to his conclusions from the making of * * * (such) tests.' Defendant seeks writ of prohibition, certiorari or mandate to prevent enforcement of this order.

Defendant first asserts that the information sought by the questions in issue is within the attorney-client privilege. Code Civ.Proc. § 1881, subd. 2. We cannot agree. None of the questions calls for the report of Cheek to defendant's attorney, and counsel for plaintiff specifically disclaims any desire to inspect or to ask about that report. Thus no question as to the confidential character of any written or oral communication from the expert to the attorney who employed him is before us. Defendant relies upon Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722. But that case held that a bus driver's report upon the facts of an accident, made to the driver's employer for transmission to the employer's attorney, is privileged. In our case, however, plaintiff seeks no disclosure of the contents of any report or other communication made to defendant's attorney. Rather, plaintiff seeks only to inquire as to Cheek's knowledge, as distinguished from anything he wrote or said to defendant's counsel.

The essence of defendant's claim, although not specifically so recognized and stated by him, is that Cheek's knowledge came to him solely by reason of his position as intermediary in a confidential communication from client to attorney. If this were so, he could not be compelled to reveal any such information, on deposition or otherwise, in the absence of waiver of the privilege. City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26, 25 A.L.R.2d 1418. Under that holding, the expert would be the agent of defendant if engaged by it, or if engaged by the attorney would be the subagent of defendant. To the extent that the client reveals information to such agent or subagent, in confidence and for transmission to the client's attorney, the agent or subagent is but an instrument of communication between client and attorney, and cannot be required to reveal what he received or perceived only for such transmission. However, the facts of our case seem to us distinguishable from those of City and County of San Francisco v. Superior Court.

The privilege attaches to knowledge acquired from a client, either by his attorney or by an intermediary between client and attorney, only when there is a communication of such knowledge by the client, which communication is made in confidence. When the client does not intend his communication to be confidential, it is not privileged. Price v. Superior Court, 161 Cal.App.2d 650, 652, 327 P.2d 203, and cases there cited. Also, as is apparent on the face of the code section, it is essential to a claim of privilege that there be a communication. It is true that actions, signs or other means of transmission of information may be communications within the privilege. City & County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 235, 231 P.2d 26, and authorities there cited. As to any such act, the question is whether it was intended as a communication. But 'those data which would have come to the attorney's notice in any event, by mere observation, without any action on the client's part--such as the color of his hat or the pattern of his shoe--and those data which become known by such acts as the client would ordinarily have done in any event, without any purpose of communicating them to the attorney as his adviser * * * these are not any part of the communication of the client * * *' (8 Wigmore, Evidence, 3d ed., § 2306, p. 590). What the attorney observes of or hears from his client is not always privileged. People v. Gilbert, 26 Cal.App.2d 1, 22, 78 P.2d 770; Gallagher v. Williamson, 23 Cal. 331; Oliver v. Warren, 16 Cal.App. 164, 168-169, 116 P. 312. It is apparent that some ingredient of disclosure or revelation is essential to the element of communication.

We have concluded that both elements, communication and confidentiality, are lacking in the knowledge over which defendant here seeks to spread the cloak of privilege. The object of Cheek's inspection, and the source of the knowledge as to which plaintiff seeks to question him, is the sidewalk area in front of defendant's drive-in. This area is open to the public. It is as readily visible to anyone approaching the building as is the color of the hat or the pattern of the shoe a client wears to his lawyer's office. No act which defendant would not have done in the ordinary course of his business was required to make known to Cheek the characteristics of this sidewalk. Similarly, the element of confidentiality present in City and County is wholly lacking here. There the injured plaintiff submitted himself to a neurological and psychiatric examination by a physician. In permitting testing of his physical and mental reactions, he clearly revealed to the doctor retained by his attorney characteristics of both his mind and his body which normally would be concealed and which, without his revelatory acts and cooperation at his attorney's request, would not have been known. The apparent resemblance of this case to City & County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 231 P.2d 26, disappears upon this closer analysis.

It must be again emphasized that no report or other communication by Cheek to defendant's attorney is here sought. Knowledge which is not otherwise privileged does not become so merely by being communicated to an attorney. Ann. Cases 1913A, p. 5. Obviously, a client may be examined on deposition or at trial as to the facts of the case, whether or not he has communicated them to his attorney. See Holm v. Superior Court, supra, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722. While the privilege fully covers communications as such, it does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney. '(A) litigant cannot silence a witness by having him reveal his knowledge to the litigant's attorney.' City & County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 238, 231 P.2d 26, 31.

One decision (Wilson v. Superior Court, 148 Cal.App.2d 433, 441-442, 307 P.2d 37) contains language indicating that exhibition to an expert of land and of construction in progress thereon, for the purpose of reporting to the owner's attorney, brings the expert's knowledge within the attorney-client privilege. That opinion, however, does not consider the elements of communication and confidentiality just discussed. Moreover, the language relied upon by petitioners was not necessary to the decision, which held that the expert's knowledge was not privileged.

The attempt to extend the attorney-client privilege to the case at bar breaks down when its application at time of trial is considered. If the sidewalk were destroyed tomorrow by earthquake or explosion, it would hardly be argued that Cheek could not be called by plaintiff at trial of the case, to testify as to the condition at the time of his inspection shortly after the accident. Defendant's attorney, at oral argument before us, was most reluctant to assert a contrary view. Yet counsel in such cases as this often overlook the fact that what is privileged at all is privileged forever, in the absence of a waiver. The essence of the privilege is that neither attorney nor client (nor agent or subagent of the client) can be compelled to disclose the privileged communication. No distinction is to be made in this respect between pre-trial discovery and examination at trial.

Unfortunately, much of the attempt to extend privilege, before the discovery acts, arose from a desire to limit 'fishing expeditions.' While it has never been logically possible to have a broad attorney-client privilege for pre-trial discovery, and a narrower one for actual trial, the feeling against pre- trial disclosure of one's case is discernible in the arguments and to some extent in the decisions of earlier years. Now that piscatorial excursions are licensed by the discovery act, and open angling season established in many areas, some...