Scotsman Mfg. Co. v. Superior Court In and For Orange County

• Decision Date: 26 May 1966
• Citation: 51 Cal.Rptr. 511,242 Cal.App.2d 527
• Court: California Court of Appeals Court of Appeals
• Parties: SCOTSMAN MANUFACTURING CO., Inc., a corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ORANGE, Respondent. Civ. 8421. . Division 1, California

51 Cal.Rptr. 511

242 Cal.App.2d 527

SCOTSMAN MANUFACTURING CO., Inc., a corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ORANGE, Respondent.

Civ. 8421.

District Court of Appeal, Fourth District.

Division 1, California.

May 26, 1966.

Welsh, Cummins & White, San Diego, and W. F. Rylaarsdam, Los Angeles, for petitioner.

Betts & Loomis and John K. Trotter, Jr., Los Angeles, for real party in interest.

OPINION

COUGHLIN, Justice.

Petitioner, Scotsman Manufacturing Co. Inc., seeks a writ of prohibition to restrain enforcement of a discovery order obtained upon motion of Real Party in Interest, The Roberts Brass Manufacturing Company. The order was made in an action against petitioner, Real Party in Interest, and others, to recover damages on account of injuries which the complaint alleges resulted from the explosion of a butane lamp installed in a trailer by petitioner, and containing a valve manufactured by Real Party in Interest. The action was filed December 8, 1964. Service upon all defendants, except Real Party in Interest, was effected in January, 1965. In June of that year, petitioner's attorney employed Dr. D. A. Morelli to examine the butane lamp and report to him respecting such examination for the purpose of assisting him in the preparation of petitioner's case. In the same month Dr. Morelli examined the lamp and delivered to the attorney his report in the premises. On Sept. 3, 1965, Real Party in Interest was served with a cross-complaint filed in the action by one of the defendants; on October 1, 1965 was served with the original complaint; and on December 24, 1965 was served with a cross-complaint filed by petitioner. Thereafter, Real Party in Interest discovered that experts employed by three of the parties to the action, including petitioner, had examined the lamp and made reports respecting their examinations; received copies of two of these reports; was refused a copy of the report by petitioner's expert; and on March 2, 1966 obtained the subject order directing petitioner to produce this report. Thereupon petitioner brought the instant proceeding to restrain enforcement of this order upon the ground, among others, the report of Dr. Morelli is a work product; there was no showing that denial of discovery thereof would unfairly prejudice real party in interest in preparing its defense or would result in an injustice; and granting the application for discovery of this report was an abuse of discretion. We have concluded these contentions are well taken.

The report in question followed employment of Dr. Morelli by petitioner's attorney to assist in the preparation of its case and constituted a work product subject to the discovery limitations prescribed by § 2016 of the Code of Civil Procedure. (San Diego Professional Ass'n v. Superior Court, 58 Cal.2d 194, 204, 23 Cal.Rptr. 384, 373 P.2d 448, 97 A.L.R.2d 461; Suezaki v. Superior Court, 58 Cal.2d 166, 177, 23 Cal.Rptr. 368, 373 P.2d 432, 95 A.L.R.2d 1073; Brown v. Superior Court, 218 Cal.App.2d 430, 437, 439--443, 32 Cal.Rptr. 527; Gen. see Swartzman v. Superior Court, 231 Cal.App.2d 195, 202--206, 41 Cal.Rptr. 721.) Subdivision (b) and (g) of that section were added in 1963. They provide respectively:

'The work product of an attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice * * *', and

'It is the policy of this State (i) to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of cases and (ii) to prevent an attorney from taking undue advantage of his adversary's industry or efforts.'

In a declaration filed in support of the motion for discovery the attorney for Real Party in Interest asserted it would be greatly prejudiced in preparing its defense of the action and an injustice would result unless discovery of the subject report were allowed because it had not been brought into the action until eight months after the other parties were served, and there was very little time remaining for preparation of its defense, as the case had been set for pretrial on May 13, 1966 and for trial on June 6, 1966. This is the only legal showing before the trial court tending to support the claim of Real Party in Interest that denial of the requested discovery would unfairly prejudice it in the preparation of its defense or result in an injustice. This claim of prejudice or injustice, obviously, is premised upon the need to obtain information contained in the report within the allegedly limited time allowed for preparation...