De Los Santos v. Superior Court

Decision Date10 July 1980
CourtCalifornia Supreme Court
Parties, 613 P.2d 233 Jesse Richard DE LOS SANTOS, a minor, etc., et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Zed William ROBINSON et al., Real Parties in Interest. L.A. 31239.

David B. Bloom and Dolin & Rothman, Los Angeles, for petitioners.

No appearance for respondent.

Omansky, Lyden & Lazarus, Leonard Harvey Lazarus, Encino, Hillsinger & Costanzo, Foster Furcolo, Jr., and Ramune E. Barkus, Los Angeles, for real parties in interest.

MOSK, Justice.

Section 952 of the Evidence Code provides that the confidentiality of a communication between client and lawyer is preserved if the client reveals the information to a third person to whom disclosure is "reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted." We are called upon in this proceeding to decide whether statements by a minor to his guardian ad litem made in the course of preparing answers by the minor to interrogatories or to respond to requests for information from his lawyer in preparing for trial come within the lawyer-client privilege.

Nine-year-old Jesse Richard De Los Santos was injured when the bicycle he was riding collided with a vehicle. He filed an action seeking damages for personal injuries against the driver of the vehicle and its owner, and he joined in the suit the manufacturer and seller of the bicycle, claiming that the bicycle was defective. The action was brought in Jesse's name by his mother, Sandra De Los Santos, as his guardian ad litem; she also joined in the suit on her own behalf to recover the cost of past and future medical care for Jesse resulting from his injuries.

In the course of preparation for trial, defendants submitted interrogatories to Jesse. Defendants also deposed Mrs. De Los Santos, and questioned her about statements that Jesse had made to her regarding the circumstances of the accident and the condition of the bicycle at the time of the accident. 1 With one exception 2 Jesse's statements to his mother regarding these matters were made in response to questions she had asked him at the request of his attorney, either for the purpose of answering the interrogatories posed by defendants or to assist the attorney in preparing the case for trial.

Mrs. De Los Santos refused to answer on the ground that the questions sought to elicit information that was a confidential communication between attorney and client. (Evid.Code, § 950 et seq.) The trial court granted defendants' motion to compel answers, by an order which provided that Jesse's mother "must answer questions relating to statements made by her son and conversations with her son except those made and had solely in the presence of his and her attorney and members of his staff." Jesse and his mother petition for a writ of mandate to compel the trial court to prohibit discovery of the information sought by defendants and to issue a protective order. (See O'Brien v. Superior Court (1965) 233 Cal.App.2d 388, 391-392, 43 Cal.Rptr. 815.)

We conclude that the petitioners are entitled to the relief requested. The information in issue was privileged as a matter of law in that it was a confidential communication between lawyer and client, despite the fact that Jesse disclosed the information to his mother in her capacity as his guardian ad litem.

In analyzing the issues involved, we consider whether the information which defendants sought is of a privileged nature; if so, whether the privilege was lost because Jesse communicated the statements to his mother; and finally whether the privilege was waived by Jesse's answers to certain interrogatories.

The lawyer-client privilege protects from disclosure the confidential communications between a client and his attorney. (Evid.Code, § 954.) In her capacity as guardian ad litem Mrs. De Los Santos is the holder of the privilege, and she was authorized to assert it on Jesse's behalf. (Evid.Code, § 953, subd. (b).) Thus, she was entitled to refuse to answer the questions put to her by defendants if the information requested was subject to the privilege (Code Civ.Proc., § 2016, subd. (b); Evid.Code, § 954, subd. (a)) and the privilege was not waived.

Since Jesse's statements to his mother were made in response to questions she asked at the request of his attorney either for the purpose of preparing Jesse's answers to the interrogatories or to assist the attorney in preparation for trial, the statements were clearly given in the course of a lawyer-client relationship. Nor can it be doubted that they were intended to be confidential. Under section 917 of the Evidence Code there is a presumption that a communication between client and lawyer is in confidence, and the opponent of the claim of privilege has the burden of proving otherwise.

Defendants have not met this burden. They appear to contend that because Jesse's statements were designed for use in answering interrogatories, the intention was to disclose them to others and hence they were not confidential.

As with statements made to an attorney in preparing to testify at trial, however, statements made by a client to his lawyer for the purpose of answering interrogatories cannot be said to lose their confidential character on the ground they were designed to be communicated by the attorney to others. It is only the testimony at trial in the one case and the answers to the interrogatories in the other that are intended to be communicated to others. To hold that such an intent is commensurate with a waiver of the privilege would completely destroy the privilege whenever a client sought to litigate his case. There would be no opportunity left for the full disclosure and open discussion between lawyer and client that the privilege exists to promote. (Glade v. Superior Court (1978) 76 Cal.App.3d 738, 743, 143 Cal.Rptr. 119; People v. Flores (1977) 71 Cal.App.3d 559, 563, 139 Cal.Rptr. 546; Gonzales v. Municipal Court (1977) 67 Cal.App.3d 111, 118, 136 Cal.Rptr. 475.) 3

We come, then, to the question whether Jesse's mother may assert the privilege on his behalf despite the fact that he revealed to her the information requested by defendants. We emphasize in this connection that Jesse and his mother do not claim that she may withhold the information on the basis of a privilege for communications between parent and child; indeed, they concede for purposes of this proceeding that there is no parent-child privilege in this state (see In re Terry W. (1976) 59 Cal.App.3d 745, 747-749, 130 Cal.Rptr. 913) and we therefore do not address the issue. They assert, however, that Mrs. De Los Santos, in her capacity as guardian ad litem, is a third party to whom communication was "reasonably necessary for the transmission of the information (to the lawyer) or the accomplishment of the purpose for which the lawyer (was) consulted" under section 952 of the Evidence Code. We find this contention persuasive.

Section 372 of the Code of Civil Procedure provides that a minor must appear in litigation by a guardian or conservator of his estate or a guardian ad litem appointed by the court. The statute represents a recognition by the Legislature that whenever a minor is involved in litigation, his rights cannot be protected unless a guardian ad litem or a similar representative acts for him. The guardian ad litem is an officer of the court, and he has the right to control the lawsuit on the minor's behalf. Among his powers are the right to compromise or settle the action (Code Civ.Proc., § 372), to control the procedural...

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  • Smith v. M.D.
    • United States
    • California Court of Appeals
    • 30 Enero 2003
    ...of a guardian ad litem to protect the minor's interest (Code Civ. Proa, § 372, subd. (a)) and in De Los Santos v. Superior Court (1980) 27 Cal.3d 677, 166 Cal.Rptr. 172, 613 P.2d 233 which holds that knowledge obtained by a minor's parent, as guardian ad litem, to secure information to comm......
  • Moore v. Moore, 89-261
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    • United States State Supreme Court of Wyoming
    • 12 Abril 1991
    ...Veazey. See Riley v. Erie Lackawanna R. Company, 119 Misc.2d 619, 463 N.Y.S.2d 986 (1983); De Los Santos v. Superior Court of Los Angeles County, 27 Cal.3d 677, 166 Cal.Rptr. 172, 613 P.2d 233 (1980). In Wyoming, that rule is consistent with policy articulated by the legislature in two spec......
  • County of Los Angeles v. Superior Court
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    • California Court of Appeals
    • 29 Agosto 2001
    ...has the right to control the litigation on behalf of the minor, subject to the court's approval. (De Los Santos v. Superior Court (1980) 27 Cal.3d 677, 683, 166 Cal.Rptr. 172, 613 P.2d 233; Torres v. Friedman, supra, 169 Cal.App.3d at p. 887, 215 Cal.Rptr. 604.) The guardian ad litem's powe......
  • In re Sara D.
    • United States
    • California Court of Appeals
    • 14 Marzo 2001
    ...372; Scruton v. Korean Air Lines Co. (1995) 39 Cal. App.4th 1596, 1603, 46 Cal.Rptr.2d 638. 17. De Los Santos v. Superior Court (1980) 27 Cal.3d 677, 683-684, 166 Cal.Rptr. 172, 613 P.2d 233; Robinson v. Wilson (1974) 44 Cal. App.3d 92, 104-105, 118 Cal.Rptr. 569. 18. Santosky v. Kramer (19......
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