San Diego Professional Ass'n v. Superior Court of San Diego County

• Decision Date: 19 July 1962
• Court: California Supreme Court
• Parties: , 373 P.2d 448, 97 A.L.R.2d 761 SAN DIEGO PROFESSIONAL ASSOCIATION, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; PADEREWSKI, MITCHELL, DEAN & ASSOCIATES, Real Party in Interest. L. A. 26721.

Page 384

23 Cal.Rptr. 384

58 Cal.2d 194, 373 P.2d 448, 97 A.L.R.2d 761

SAN DIEGO PROFESSIONAL ASSOCIATION, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

PADEREWSKI, MITCHELL, DEAN & ASSOCIATES, Real Party in Interest.

L. A. 26721.

Supreme Court of California, In Bank.

July 19, 1962.

Hillyer, Crake & Irwin and Oscar F. Irwin, San Diego, for petitioner.

No appearance for respondent.

Kaminar, Sorbo, Andreen, Thorn & Gallagher and Francis E. Gallagher, San Diego, for real party in interest.

PETERS, Justice.

Petitioner hired the real party in interest, a firm of architects, to prepare plans for and to supervise the construction of a medical office building on petitioner's real property. After completion of the building, the real party filed a mechanic's lien, and subsequently filed an action for foreclosure of that lien, alleging that $11,032.51 was still due for their services. Petitioner answered, and cross complained, alleging two causes of action. The first was based on the claimed malpractice of plaintiff in improperly designing and planning the building. The second alleged breach of contract to perform the architectual services. In the course of preparing for trial, petitioner's attorney (representing defendant and cross complainant) retained a firm of engineers to make a study of all the documents involved in the alleged deficiencies, and to analyze the same with reference to the portions of the building alleged to have been imporperly designed or constructed. Upon completing such study, the engineers prepared and delivered a report of their findings to the attorney. While this report was in the hands of petitioner's attorney, the real party (as plaintiff and cross defendant) filed a motion for an order requiring production, inspection and copying of '(a)ll reports of engineering or scientific experts which discuss alleged defects in the construction of the medical building * * * and in particular a one hundred page report from a Los Angeles engineering firm including diagrams, photographs and mathematical computations discussing alleged defects in said building.' Declarations were filed in support of and in opposition to the motion, and, after hearing, the trial court made a written order granting inspection with certain restrictions and limitations. ¹ That order contained a recital of matters referred to as 'findings,' which included: (1) the documents described in the motion were prepared by engineers, at the request of defendant's attorney, for the purpose of trial preparation and with the intent of using such engineers as expert witnesses; (2) the report was not a communication from defendant to its counsel, and by reason of such fact is not privileged; ² (3) defendant did not consent to plaintiff's examination of the report; ³ (4) 'Defendants (sic) have no legal right to withhold said report * * * on the grounds that * * * (it) constitutes part of Defendants' (sic) counsel's work-papers;' ⁴ (5) defendant having expended more than $4,000 for the report, it is proper for the court to impose such terms in that regard as justice may require. The order provided, among other things, that: (1) defendant make the engineering report available to plaintiff for inspection, copying or photographing; (2) should defendant desire to take the depositions of plaintiff, its agents or representatives, and use the engineering report for that purpose, it might do so prior to delivering the report for inspection, but within a time limit set forth in the order; (3) plaintiff and cross defendant pay to defendant and cross complaint, for the use of the report, a sum of money to be determined by the court at time of trial.

Inasmuch as the case presented an important problem of first impression in the field of discovery, this court issued an alternative writ of prohibition to review the propriety of the trial court's order. In support of its position, petitioner makes the single contention that the report itself was and is privileged under the attorney-client privilege. It specifically concedes that the names of the engineers who prepared the report are discoverable, and that the real party would have the right to take the engineers' depositions. Thus, superficially, it appears that the sole issue involved is whether or not a report rendered under these circumstances is, as a matter of law, a confidential communication from client to attorney. But the arguments made in support of the claim of privilege (together with the fact that the trial court made a specific finding negativeing the fact) indicate the further contention that discovery should be denied because the report is the work product of the attorney.

The attorney-client privilege:

The client did not directly order this report, because it was prepared by the expert at the request of, and delivered to, the attorney. This fact, however, as petitioner correctly argues, does not prevent application of the attorney-client privilege if the circumstances indicate that the expert was retained to examine the client or the client's confidential affairs for the purpose of discovering (and reporting to the attorney) technical data which the layman is incapable of discovering, or which the layman cannot express in the proper technical language. This problem was discussed in Suezaki v. Superior Court, Cal., 23 Cal.Rptr. 368, 373 P.2d 432 and in Oceanside Union School District v. Superior Court, Cal., 23 Cal.Rptr. 375, 373 P.2d 439. But this principle of law is not necessarily here applicable. The burden of establishing that a particular matter is privileged is on the party asserting that privilege (Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548, 565, 7 Cal.Rptr. 109, 354 P.2d 637, and cases cited therein). In an attempt to sustain this burden the objecting party filed two declarations.

The first declaration, after briefly setting forth the issues of the case, stated: 'In order to prepare for the trial of the above action it was, in the opinion of * * * (defendant's attorney) necessary to make a thorough study of all contract documents involved in connection with the above specified deficiencies and to have said documents analyzed with respect to the air conditioning system, roof structural support, roof drainage, etc., installed under the supervision of plaintiff. That such analysis could be made in many respects by * * * (defendant's attorney) but to aid * * * (him) in properly preparing defendant and cross-complainant's case for trial * * * (he) went * * * to the City of Los Angeles and employed a certain engineering firm to aid * * * (him) in making such analysis. A report of such analysis was thereafter prepared and delivered to * * * (him) by said engineering firm * * * and said engineering report is presently in the hands of * * * (defendant's attorney) * * *.

'* * * that said report is privileged communication (sic) and was specially prepared for the use of the attorneys for * * * (defendant and cross complainant) does not constitute evidence, and that the privilege asserted in connection with the said communication has never been waived.'

The second declaration, in connection with a denial that the report was ever promised to plaintiff, stated that: 'Nothing was said in any manner of making the report available for inspection by * * * (plaintiff's attorney) and this could hardly be accomplished, since if the document were privileged as a matter of law, the privilege could only be waived by the clients of declarant, and declarant was hardly in any position to talk about inspection of something he had not seen himself.

'* * * The experts were retained by declarant's law firm for purposes of interpretation to the attorney for defendants of the physical and structural qualities of the building in question, the corporate owners of said building and its officers being unable to inform said attorneys of the actual physical difficulties with said structure or the causes thereof, and only able to inform the attorneys of their complaints as occupants of said building and of the building's tenants as to failure of certain features in the structure to work properly so far as the result intended to be obtained from said features. Because of the inability of the clients of the attorneys to so inform them as to the actual cause of the complaints being expressed, it was necessary for the attorneys to have the assitance of expert engineers to interpret said difficulties and render opinions as to the causes of the same. Said experts were employed after the filing of the within action for said purpose alone, and not to make any corrections in said structure or to cause corrections to be made therein by any third parties, but for the sole and only purpose of aiding the attorneys in preparation of the case for trial on behalf of the attorneys' clients. The experts had no knowledge of said building or structure or the difficulties encountered therein, or of the within action, until requested * * * to make the necessary examination of documents, records and the physical structure and the properties thereof in order to communicate to the attorneys the actual difficulties or causes thereof with said building which the clients of the attorneys were themselves unable to inform attorneys, they lacking the necessary specialized knowledge to make the required examination and render an opinion on same.'

Petitioner contends that this showing is identical in all particulars with the showing made when a medical doctor is retained by an attorney to examine and report on the physical or mental condition of his client when such condition is at issue in a pending lawsuit, which report is, of course, privileged. It is true that the showing made is similar in that in the instant case the expert was retained for the purpose of rendering a report regarding issues presented in a pending lawsuit, and that while the client was able to report complaints to his...