Klang v. Shell Oil Co.
| Decision Date | 27 May 1971 |
| Citation | 17 Cal.App.3d 933,95 Cal.Rptr. 265 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Louis KLANG, Plaintiff and Appellant, v. SHELL OIL COMPANY, a corporation, and George Takatani, Defendants and Respondents. Civ. 35903. |
Toxey Hall Smith, Hollywood, and Victor Rosenblatt, Los Angeles, for plaintiff and appellant.
Schell & Delamer, Lee A. Solomon, and Charles H. Carpenter, Los Angeles, for defendant and respondent Shell Oil Co.
John Y. Maeno, Los Angeles, A.P.G. Steffes, Beverly Hills, and John Peckham Los Angeles, for defendant and respondent George Takatani.
This is an appeal by the plaintiff in a personal injury action from a judgment entered on a defense verdict. We affirm the judgment.
Appellant was injured when he was struck by an automobile while standing behind his own car which was stopped partly in a traffic lane of the Long Beach Freeway. He settled his cause of action against the driver of the car which struck him and proceeded to trial against respondents on the theory that their actions in not properly closing the hood of his automobile caused it to open, thus obstructing his vision and requiring him to stop the car in a place of danger. On this appeal, appellant does not question the sufficiency of the evidence to support the defense verdict. He contends, however, that the trial court erred in ruling upon a claim of attorney-client privilege and in refusing his proffered instruction on the duty of care required of a rescuer.
Appellant was injured in the early morning hours of April 12, 1964. He was taken to Compton Hospital. In an unexplained fashion, someone at the hospital came upon a slip of paper in appellant's pocket which bore the name, address, and telephone number of Louis Lawson, an attorney. Appellant had never met Lawson and had no previous relationship with him. Lawson was called by the hospital at 3 a.m. and proceeded there immediately. While Lawson was unable to converse with appellant because of appellant's physical condition, he nevertheless commenced an investigation of the accident by employing an investigator who interviewed witnesses. During the month which followed, Lawson did not obtain 'a clear statement' from appellant as to what had occurred. He did obtain a signed retainer agreement on April 27.
On May 11, 1964, Lawson was contacted by Officer Snedder who was investigating the accident. Snedder asked that appellant furnish information concerning it. Snedder informed Lawson that if the circumstances of the accident were not explained, he would be required to issue a citation to appellant. Lawson, acting on behalf of appellant, '* * * (A)dvised (Snedder) that I did not want to have Mr. Klang (appellant) involved in a court appearance when he was rather ill and injured and then I could give him a statement of what I knew the facts to be from my investigation, if that would satisfy his requirement.' Snedder replied, 'tell me what you know.' Lawson then told Snedder in substance * * *'
The statement given by Lawson to Officer Snedder is extremely damaging to appellant's theory in the instant case which seeks to fasten liability upon respondents upon the basis that their failure properly to secure the hood of appellant's car caused the hood to fly open resulting in his being required to stop the vehicle on a traffic lane of the freeway.
When the case at bench was called for trial, counsel for appellant and respondents stipulated 'that the matter of admissibility of statements of plaintiff (appellant) to his former attorney (Lawson) and the statements made by the former attorney be determined before the beginning of the trial before the jury.' Pursuant to that stipulation, a hearing on the admissibility of the statements was held before Judge Allport on May 9, 1969. Appellant sought to exclude the statements as hearsay, as the work product of an attorney and as a confidential communication between attorney and client. The court ordered that the statement from Lawson to Officer Snedder be admitted in evidence. A series of continuances followed. When the matter was ready for trial, Judge Allport had been elevated to the Court of Appeal and the case was assigned to Judge Beck. Appellant sought to relitigate the issue of admissibility of the statement contending that Judge Allport's elevation had in effect resulted in a mistrial. Judge Beck refused to permit the matter to be reopened, basing his ruling upon the stipulation of counsel that the matter of admissibility should be determined as a question preliminary to trial.
On appeal, appellant contends that: (1) Judge Beck erroneously refused to reopen the proceedings to determine the admissibility of the statements; (2) Judge Allport erroneously compelled disclosure of a communication between attorney and client in the course of ruling upon the question of privilege; and (3) the statement from Lawson to Officer Snedder was improperly admitted in evidence because it represents a confidential communication between attorney and client. 1 Our examination of the record indicates that the contentions are without merit.
Appellant's contention that Judge Beck was required to hold a new hearing upon the admissibility of the statement when the case was assigned to him reneges upon the stipulation of his counsel. The fair meaning of that stipulation is that the court was to determine admissibility of the statements prior to the time that trial before the jury commenced. The court made its determination as required by the stipulation. The subsequent elevation of the judge who made the ruling on the preliminary matter detracted not at all from its validity since the ruling was that of the court and not of an individual. (County of San Mateo v. Bartole, 184 Cal.App.2d 422, 436, 7 Cal.Rptr. 569.)
Appellant's argument that the trial court erroneously compelled the disclosure of information claimed to be privileged in ruling on the claim of privilege (Evid.Code, § 915(a)) is not supported by the record. Long before the case at bench came to trial, appellant's counsel had voluntarily disclosed to Officer Snedder information concerning the manner in which appellant's vehicle came to stop on the freeway. That disclosure was not in confidence. In the hearing to determine admissibility of that information, the trial court took evidence of the statement from Lawson to Snedder. That evidence cannot be construed as the required disclosure of information claimed to be privileged because the disclosure had already occurred without action of any kind by the court.
Appellant's claim that the...
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