Jessup v. Superior Court In and For Santa Clara County
| Decision Date | 17 May 1957 |
| Docket Number | No. 17644,17644 |
| Citation | 151 Cal.App.2d 102,311 P.2d 177 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Jacob A. JESSUP, Petitioner, v. SUPERIOR COURT IN AND FOR The COUNTY OF SANTA CLARA and the Honorable Byrl S. Salsman, Respondents, Earnest Sanders, Real Party In Interest. |
Campbell, Custer, Warburton & Britton, San Jose, for petitioner.
Boccardo, Blum, Lull, Niland & Teerlink, San Jose, for respondent (real party in interest).
The Superior Court of Santa Clara County issued a writ of mandate to compel petitioner, who is the Chief of the Department of Public Safety of the city of Sunnyvale, to permit Earnest Sanders (the real party in interest) to inspect certain records. Petitioner declined to do so. Thereafter petitioner was found in contempt of court for failing to comply with the court's order. Sentencing, however, was deferred until after the determination of this 'Petition for Writ of Prohibition, Mandate, or Other Appropriate Writ.' 1, 2
Question Presented.
Are reports of investigations of accidents involving personal injuries or deaths, and possible municipal liability, of the Department of Public Safety and of the Department of Parks and Recreation of a municipality, privileged? Corollary to the question is the following: As to those reports, does section 1881, subdivisions 2 and 5, Code of Civil Procedure () control over section 1892, Code of Civil Procedure (), and section 1227, Government Code ()?
Facts.
The city of Sunnyvale operates and maintains a swimming pool. The 8-year-old son of Sanders was drowned therein. Sanders desires to present to the city a claim for his death. He demanded of Chief Jessup and of Director Menage the records and reports made by the agents of each department in the course of their investigation of the drowning. His demand was denied. He claims that therefore he is unable to determine whether he has a meritorious claim against the city.
At the hearing, Chief Jessup testified that as a matter of routine of his department an investigation is made by the officer of the department in every accident in the city involving the death of a human being. The records and reports of such accidents are kept indefinitely in the department. Such investigation was made of the drowning of the Sanders boy. It included the questioning of a number of people who are not employed by the city as well as of city employees. His department is interested in the prevention of accidents involving human injury and death. There seemed to be some confusion in the chief's testimony as he was talking generally about investigations of all serious accidents in the city, including traffic accidents and other types in which the city itself would not be involved. The reports in this matter were delivered either to the city manager or the city attorney. When an accident occurs involving city property or employees the investigation is made for the purpose of advising the city attorney or other defense attorneys employed by the city, for use as a defense to a future law suit.
Director Menagh testified that in the event of the death of a human being in any facility under his department's control (the swimming pool was) reports are made to him and go into the files of his office. On serious accidents the reports are turned over to the city manager. In this matter the City manager requested them. The director is interested in seeing that the facilities are operated in a safe manner and when anything goes wrong the director wants to know about it. If the reports indicate something which caused the accident needs to be corrected, the director will take the action necessary to make the correction. The director is primarily concerned with the safe and efficient operation of his department. One of the purposes of making the investigation is to insure safety in the future; another purpose is to receive all the facts and information of the accident and turn those facts over to the city manager.
The city manager testified that both Jessup and Menagh and their departments are under his supervision; that one of his functions is to issue general orders of policy concerning accidents that might involve the city. The department head concerned with a particular accident that may involve the city's insurance carrier as a matter of standard practice is to report his special investigation to the city manager. In the past these reports were turned over by the city manager to the attorney for the city's insurance carrier, but now, as the city attorney is a full time employee, they are turned over to him. The purpose of these reports is to protect the city from liability and to enable the city to get more favorable bids on municipal liability insurance. Probably failure to make these investigations would make insurance difficult to get. One of the purposes in gathering the material in the reports is for defense of possible future litigation. The Sanders reports were reviewed by the city manager and then immediately turned over to the city attorney upon receipt. One of the reasons for the reports is to determine methods by which the recurrence of similar accidents can be prevented. The welfare of the people of Sunnyvale is concerned with both reasons for the report. The primary purpose is for use in possible litigation. There are records of the Public Safety Department concerning this accident which are open to the public and which would disclose any possible cause of the accident. The reason the investigation is made by the members of the departments is that the city attorney does not have any staff for investigative purposes. There is an altogether different procedure for handling safety than these special investigation reports. These reports would not be available to the safety council staff conference, which considers any matters which might have caused the drowning. The report would not be available to the Public Safety Department which created it. It has an official report which is open to the public. That department makes two separate investigations, one for their official report and one for a special report to the city manager.
Chief Jessup testified that he did not know that his department made two separate investigations; that the records and reports made by his department are kept there unless called for by the city manager.
Section 1892, Code of Civil Procedure, provides: 'Every citizen has a right to inspect and take a copy of any public writing of this State, except as otherwise expressly provided by statute.'
Section 1227, Government Code, provides: 'The public records and other matters in the office of any officer, except as otherwise provided, are at all times during office hours open to inspection of any citizen of the State.'
The term 'public officer' includes all officers who fill 'offices created by or under the authority of charters or laws for the government of counties and cities.' Gov.Code, § 1001. People v. Tomalty, 14 Cal.App. 224, 231, 111 P. 513, 515.
We are of the opinion that these reports are 'other matters' referred to in section 1227, Government Code. See Coldwell v. Board of Public Works, 187 Cal. 510, 202 P. 879. They would be open to inspection by a citizen were it not that they come within the exceptions 'except as otherwise expressly provided by statute' in section 1892, Code of Civil Procedure, and 'except as otherwise provided' in section 1227, Government Code. The 'otherwise expressly provided' is section 1881, Code of Civil Procedure, subdivision 2: '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; nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity;' and subdivision 5: 'A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.'
That investigation reports made for the use of attorneys in the defense of possible litigation are 'communications' under subdivision 2 is well settled. See New York Casualty Co. v. Superior Court, 30 Cal.App.2d 130, 132, 85 P.2d 965. Nor does the fact that these reports can be and are used additionally for accident prevention purposes take away from their confidential aspect while they are being held for defense purposes. The necessity of their being held privileged until the possibility of litigation has ceased, or litigation which ensued has terminated, is more necessary to the public welfare than the matter of leaving them open for citizen inspection. This case illustrates that fact. Here Sanders is not desirous of seeing these reports as a citizen primarily interested in protection of the public; he is desirous of seeing them in the hope that he may gain some advantage therefrom in his contemplated suit against the city, making disclosure a possible disadvantage to the city. Thus the public welfare requires that inspection be postponed until disclosure will no longer be of disadvantage to the city. 3
Subdivision 5 4 uses the language 'communications made to * * * [a public...
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Privileges
...it has no purpose except use in litigation, the report is covered by the work product privilege. See also Jessup v. Superior Court , 151 Cal. App. 2d 102, 31 1 P.2d 177 (1957). Martin v. Capital Transit Co. , 170 F.2d 811 (D.C. Cir. 1948). A motion for discovery of an employee’s report of a......
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