Holm v. Superior Court

• Decision Date: 12 March 1954
• Citation: 42 Cal.2d 500,267 P.2d 1025
• Court: California Supreme Court
• Parties: . S. F. 18781. Supreme Court of California

Page 1025

267 P.2d 1025

42 Cal.2d 500

HOLM et al. v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO.

S. F. 18781.

Supreme Court of California.

March 12, 1954.

As Modified on Denial of Rehearing April 7, 1954.

Dion R. Holm, City Atty., and Donald J. Kropp, Deputy City Atty., San Francisco, for petitioners.

Bronson, Bronson & McKinnon, and Roy Bronson, San Francisco, amici curiae on behalf of petitioners.

No appearance for respondent.

Shirley, Saroyan, Calvert & Barbagelata and J. Francis Shirley, San Francisco, for real party in interest.

SHENK, Justice.

The petitioners seek a writ of prohibition to restrain the respondent court from enforcing its order for the inspection of certain documents in their possession. An alternative writ was issued.

The order was made in an action in which Wynona Bell, referred to as the plaintiff, seeks to recover damages from the petitioners Raymond Gnecco and the City and County of San Francisco for personal injuries alleged to have been suffered by her due to the alleged negligent operation by Gnecco, an employee of the city's Municipal Railway, of a bus on which she was a passenger. The petitioners Dion R. Holm and Donald J. Kropp are attorneys at law who at all times involved represented the city and county. They are also the legal representatives of Gnecco as an employee of the city and county in the action for damages. Before trial in that action the plaintiff moved under Section 1000 of the Code of Civil Procedure for an order permitting her to inspect, among other things, (1) a document containing a signed statement made by her to a claims investigator of the Municipal Railway concerning the facts of the accident; (2) written reports by Gnecco to the city setting forth his version of the accident, and (3) photographs taken at the scene of and following the accident by agents of the city.

The pertinent parts of Section 1000 provide: 'Any court in which an action is pending, or a judge or justice thereof may, upon notice, order either party to give to the other, within a specified time, an inspection and copy or permission to take a copy, of entries of accounts in any book, or of any document or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein. * * *'

In support of the motion for the order of inspection it was stated in affidavits on behalf of the plaintiff that she had signed a written statement setting forth factual information material to the controversy, the contents of which she could not remember and a copy of which had not been furnished her. It was stated in an affidavit of the plaintiff's counsel that the documents involved were recorded and preserved in the 'regular course of business of defendants in the operation of the Municipal Railway.' Ti is claimed that a deposition of the petitioner Gnecco, not made a part of the record here, also contains evidence that the reports were filed in the regular course of business. There is no further reference to the purpose of the documents in the complaint, the notice of motion, other supporting affidavits or in any other documents which are a part of the plaintiff's record. The deputy city attorney and the general claims agent for the Municipal Railway, in affidavits filed on behalf of the petitioners, stated that the questioned documents had been kept in confidence in the possession or control of one of them since they were made; that they were in the possession of the attorney at the time of the demand for their production; that they were secured and kept in confidence for use by the attorneys for information and aid in defending in any litigation arising out of the accident, and that the documents are protected by the attorney-client privilege.

The foregoing was the only evidence before the court. The motion was granted as to the documents involved, and the court ordered the petitioners to produce them. Thereafter a motion to vacate the order was denied. The petitioners refused to comply with the order asserting that the court lacked jurisdiction to make it. The court threatens to enforce its order by contempt proceedings and the petitioners seek to restrain its enforcement by this application for the writ of prohibition.

The order is not appealable and prohibition is the proper remedy. City and County of San Francisco v. Superior Court, 38 Cal.2d 156, 238 P.2d 581; Franchise Tax Board v. Superior Court, 36 Cal.2d 538, 225 P.2d 905.

The petitioners' main contentions are that the attorney-client privilege, Code Civil Procedure, Section 1881(2), bars inspection of the papers; that Section 1000 of the Code of Civil Procedure is no broader than the historical bill of discovery in equity, and that by reason of the limitations of the latter, the documents may not be inspected.

In regard to the latter contention it is true that there formerly was no right in equity to inspect an adversary's documentary evidence. 6 Wigmore, Evidence, 3d Ed., 1940, Sec. 1857, p. 443. However, while the cases hold that Section 1000 is based upon the bill of discovery in chancery courts, Union Trust Co. v. Superior Court, 11 Cal.2d 449, 81 P.2d 150, 118 A.L.R. 259; Wright v. Superior Court, 139 Cal. 469, 73 P. 145, they do not hold that the equitable rule establishes a limitation on the scope of our code section. Where the use of the statutory bill of discovery is denied by our courts it usually is because the information sought to be obtained is not relevant or material to any of the issues in the case. Union Collection Co. v. Superior Court, 149 Cal. 790, 87 P. 1035; Ex parte Clarke, 126 Cal. 235, 58 P. 546, 46 L.R.A. 835. It has been said that the documents also must be properly identified and admissible in evidence at the ensuing trial. McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 159 P.2d 944. But none of the cases hold that Section 1000 is to be construed as narrowly as the petitioners contend. On the contrary, in Union Trust Co. v. Superior Court, supra, 11 Cal.2d 449, at page 462, 81 P.2d 150, at page 157, this court stated: 'That the trend of judicial decisions is to relax the rules which relate to the taking of evidence by ancillary proceedings, of which the inspection of documents is one method * * *.' It further quoted from Corpus Juris, volume 18, page 16, to the effect that provisions such as Section 1000 are "remedial in their nature and should be liberally construed." See, also, 27 C.J.S., Discovery, § 69; Austin v. Turrentine, 30 Cal.App.2d 750, 87 P.2d 72, 88 P.2d 178. Section 1000 provides in part that when an adversary refuses to comply with an order of inspection, the court 'may exclude the entries of accounts of the book, or the document, or paper from being given in evidence * * *.' It is apparent that this could apply only to documents in support of the adversary's own case. It has been said, without discussion of the point here involved, that inspection was proper in a case where account books bore evidence of the adversary's own case. Avery v. Wiltsee, 177 Cal. 484, 488, 171 P. 95; see also Superior Ins. Co. v. Superior Court, 37 Cal.2d 749, 235 P.2d 833; Demaree v. Superior Court, 10 Cal.2d 99, 73 P.2d 605.

There is no question but what the documents here sought to be inspected are material and relevant to questions in issue, would be admissible in evidence, and are within the scope of Section 1000 of the Code of Civil Procedure, subject to their confidential nature.

The right to maintain the security of a confidential communication under the attorney-client privilege is set forth in Section 1881 of the Code of Civil Procedure which states in part: 'There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person can not be examined as a witness in the following cases * * * 2. Attorney and client. An attorney can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment * * *.' See also Business & Professions Code, § 6068(e). Where the right to assert the privilege is clear it should follow that the bill of discovery cannot be used to defeat it.

The objective of making a particular communication privileged is to encourage a client to make a complete disclosure to his attorney without fear that others may also be informed. City and County of San Francisco v. Superior Court, 37 Cal.2d 227, 235, 231 P.2d 26, 25 A.L.R.2d 1418; 8 Wigmore, Evidence, supra, Sec. 2380a, p. 813. The privilege attaches where the communicatoin is made in confidence pursuant to a client-attorney relationship with respect to the particular matter. McKnew v. Superior Court, 23 Cal.2d 58, 65-66, 142 P.2d 1. Thus there would seem to be no privilege in a communication which is not made to or for further communication to an attorney, although the communication might have some connection with possible liability in the future, such as reports submitted in the regular course of business for study in accident prevention. Nor does the privilege attach to a communication not intended to be of a confidential nature. City and County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 234-235, 231 P.2d 26; McKnew v. Superior Court, supra, 23 Cal.2d 58, 66, 142 P.2d 1. To make the communication privileged the dominant purpose must be for transmittal to an attorney 'in the course of professional employment'. Code of Civil Procedure, § 1881(2); City and County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 235, 231 P.2d 26.

In any given situation it is necessary that a determination be made concerning the facts asserted as a basis for the privilege. This determination is for the trial court in the first instance. Where it is clear that the communication has but a single purpose, there is little difficulty in concluding that the...