Holm v. Superior Court

Decision Date07 April 1954
Citation42 Cal.2d 500,268 P.2d 722
CourtCalifornia Supreme Court
Parties& COUNTY OF SAN FRANCISCO. S. F. 18781. Supreme Court of California, in Bank

CARTER, Justice (dissenting on denial of petition for rehearing).

The petition for rehearing herein calls attention to the fact that the record does not disclose that the photographs in question were taken by an agent of the city. This is correct. The record does not disclose by whom the photographs were taken. It is alleged in the affidavits that the photographs were in the possession of counsel for the city but there is no showing whatsoever that the photographs were taken by any one on behalf of the city or that they were acquired by the city in contemplation of litigation arising out of the accident here involved. Since the burden was on the petitioner here to show that the photographs were privileged, it is clear that he failed to make such showing. The majority opinion is therefore based upon the erroneous assumption that the photographs were taken by an agent of the city.

Since the decision in this case was filed my attention has been called to several authorities which support the ruling of the trial court here but which were not cited in any of the briefs. These authorities are Morehouse v. Morehouse, 136 Cal. 332, 68 P. 976, Freel v. Market St. Cable Ry. Co., 97 Cal. 40, 31 P. 730, Hirshfeld v. Dana, 193 Cal. 142, 223 P. 451, Cordi v. Garcia, 39 Cal.App.2d 189, 102 P.2d 820. None of these authorities is cited in either the majority or dissenting opinions and were not considered by the court in the decision of this case.

In McKinley v. Southern Pacific Co., 80 Cal.App.2d 301, 314, 181 P.2d 899, 908, the court said: 'The next contention of appellants Southern Pacific Company and its employees is that the trial court erred in granting respondents' motion to compel said appellants to produce written reports of the accident made by appellants Ahlborn and Shafer (the engineer and fireman) to their superior. Upon cross-examination of said appellants repondents brought out the fact that they had made written reports to B. E. Stone, their superior, and counsel for respondents thereupon demanded said statements and moved the court for an order requiring appellants to produce them, which motion was granted by the court over the objection of said appellants. Appellants concede that no prejudice resulted to them from said ruling but urge that it is a question of some importance and should be determined by this court. * * *

'In Morehouse v. Morehouse, 136 Cal. 332, 337, 68 P. 976, 978, the court, quoting from Ex parte Clarke, 126 Cal. 235, 239. 58 P. 546, 46 L.R.A. 835, 77 Am.St.Rep. 176, said: 'When a witness is in court * * * and discloses the fact that he has a paper, document, or book which would be evidence in favor of the party desiring it, he may, in a proper...

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52 cases
  • Greyhound Corp. v. Superior Court In and For Merced County
    • United States
    • United States State Supreme Court (California)
    • 3 de agosto de 1961
    ...San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26, 25 A.L.R.2d 1418; Holm v. Superior Court, 42 Cal.2d 500, 506, 267 P.2d 1025, 268 P.2d 722). It has been held that it is still the client's communication to the attorney even when it is given to an agent for transmission to the att......
  • People By and Through Dept. of Public Works v. Glen Arms Estate, Inc.
    • United States
    • California Court of Appeals
    • 23 de novembro de 1964
    ...448, 97 A.L.R.2d 761. Plaintiff in urging privilege relies principally on Holm v. Superior .court (1954), 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722. Each makes convenient, but not identical, reference to the basic principles formulated by Justice Peters in D. I. Chadbourne, Inc. v. Superio......
  • City of Hemet v. Superior Court
    • United States
    • California Court of Appeals
    • 24 de agosto de 1995
    ...privileged, depending on the "dominant purpose" behind its preparation. (Holm v. Superior Court (1954) 42 Cal.2d 500, 507, 267 P.2d 1025, 268 P.2d 722; Vela v. Superior Court (1989) 208 Cal.App.3d 141, 149, 255 Cal.Rptr. Under the Press-Enterprise's view, the internal affairs report here wa......
  • Estate of Kime
    • United States
    • California Court of Appeals
    • 22 de junho de 1983
    ...179 Cal.App.2d 122, 128, 3 Cal.Rptr. 621; Holm v. Superior Court (1954) 42 Cal.2d 500, 506-507, 267 P.2d 1025, rehg. den. (1952) 42 Cal.2d 500, 521, 268 P.2d 722; Grover v. Superior Court (1958) 161 Cal.App.2d 644, 646, 327 P.2d 212.) In California the privilege has been held to embrace not......
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6 books & journal articles
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2014 Contents
    • 31 de julho de 2014
    ...doctrine ; the only applicable test is whether the document was prepared in anticipation of litigation . Holmes v. Superior Court, 42 Cal. 2d 500, 268 P.2d 722 (1954). Whether an insurance agent report is covered by the work product privilege depends upon the purpose of the report. If it ha......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2015 Contents
    • 31 de julho de 2015
    ...doctrine ; the only applicable test is whether the document was prepared in anticipation of litigation . Holmes v. Superior Court, 42 Cal. 2d 500, 268 P.2d 722 (1954). Whether an insurance agent report is covered by the work product privilege depends upon the purpose of the report. If it ha......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • 31 de julho de 2016
    ...doctrine ; the only applicable test is whether the document was prepared in anticipation of litigation . Holmes v. Superior Court, 42 Cal. 2d 500, 268 P.2d 722 (1954). Whether an insurance agent report is covered by the work product privilege depends upon the purpose of the report. If it ha......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • 31 de julho de 2017
    ...doctrine ; the only applicable test is whether the document was prepared in anticipation of litigation . Holmes v. Superior Court, 42 Cal. 2d 500, 268 P.2d 722 (1954). Whether an insurance agent report is covered by the work product privilege depends upon the purpose of the report. If it ha......
  • Request a trial to view additional results

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