Soltani-Rastegar v. Superior Court

• Decision Date: 03 March 1989
• Docket Number: SOLTANI-RASTEGAR,No. A044539,A044539
• Citation: 256 Cal.Rptr. 255,208 Cal.App.3d 424
• Court: California Court of Appeals Court of Appeals
• Parties: Mariamet al., Petitioners, v. The SUPERIOR COURT of the City and County of San Francisco Respondent; Francesco BRINZO, Real Party in Interest.

Page 255

256 Cal.Rptr. 255

208 Cal.App.3d 424

Mariam SOLTANI-RASTEGAR et al., Petitioners, v. The SUPERIOR COURT of the City and County of San Francisco Respondent Francesco BRINZO, Real Party in Interest.

No. A044539.

Court of Appeal, First District, Division 3, California.

March 3, 1989.

Pelton & Gunther, Jon L. Brown, San Francisco, for petitioners.

No appearance for respondent.

Carolyn B. Dethlefsen, Law Offices of Christopher Johns, San Rafael, for real party in interest.

STRANKMAN, Associate Justice.

Two defendants in a personal injury action challenge a court order requiring disclosure of statements they made to an insurance claims representative. They contend that these statements are covered by the attorney-client privilege because they were made in contemplation of litigation and were directed to an agent of their attorney. They discount the fact that when the statements were given litigation had not yet begun and no attorney had been assigned to handle the case. Applying the teachings of Gene Compton's Corp. v. Superior Court (1962) 205 Cal.App.2d 365, 23 Cal.Rptr. 250, and Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 191 Cal.Rptr. 871, we grant the requested relief.

These proceedings arise out of a two-car accident in San Francisco on April 19, 1987. Real party in interest was an occupant of a car driven by his grandson. Petitioner Mariam Soltani-Rastegar was the driver of a car owned by petitioner Paul Craib. Mr. Craib's car was insured by California State Automobile Association Inter-Insurance Bureau (CSAA). Within a month of the accident, Mr. Craib spoke with a CSAA claims representative over the phone and in person. He made no report in writing. On August 24, 1987, Ms. Soltani-Rastegar gave a written statement to CSAA claims representative Jennifer Anderson, who had primary responsibility for adjusting any claim brought by real party.

On April 13, 1988, real party filed his action against Ms. Soltani-Rastegar, Mr. Craib, and others. During discovery, he learned about Ms. Soltani-Rastegar's written statement and that Ms. Anderson had taken notes about Mr. Craib's statements to her. Over petitioners' objections based upon the attorney-client privilege, the court ordered production of both Ms. Soltani-Rastegar's statement and Ms. Anderson's notes. The court concluded that petitioners had not "established the existence of an attorney-client relationship that would justify the assertion of such privilege" as to those items. This petition followed.

With certain exceptions not applicable here, a client "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer." (Evid.Code, § 954.) "The party claiming privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute." (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729, 36 Cal.Rptr. 468, 388 P.2d 700.)

In opposing the discovery request, petitioners submitted declarations explaining that their statements were made in confidence to CSAA agents "for the sole purpose of defending" them against claims brought by those involved in the accident. The declarations further asserted that on May 23, 1988, the statements were delivered along with the CSAA file to petitioners' present attorney, who has kept them since then.

Real party in interest argued below that petitioners did not meet their burden of showing that the attorney-client relationship covered these communications because both statements were made long before the lawsuit was filed and before CSAA had retained an attorney to represent petitioners. He repeats that argument in this court, with some elaboration.

Gene Compton's and Travelers demonstrate the weakness of real party's argument. In Gene Compton's, the trial court ordered disclosure of statements made by employees who had witnessed plaintiff's fall on a stairway of the defendant's premises. The statements had been sent to the insurance company shortly after the accident and some eight or nine months before litigation was commenced and before an attorney was selected to represent the defendant. The Gene Compton's court reversed the disclosure ruling, concluding that the transmission of privileged communications to the attorney through the agency of an insurance carrier did not destroy the privilege. (Gene Compton's Corp. v. Superior Court, supra, 205 Cal.App.2d at p. 379, 23 Cal.Rptr. 250.)

D.I. Chadbourne, Inc. v. Superior Court, supra, 60 Cal.2d at pages 730-731, 36 Cal.Rptr. 468, 388 P.2d 700, cast doubt upon the Gene Compton's decision when it disapproved Gene Compton's failure to distinguish properly questions of law from questions of fact. But Travelers has completely rehabilitated much of the Gene Compton's opinion, including the part that applies here. As explained by Travelers, "Chadbourne ... left intact Gene Compton's approval of the holding in Heffron [Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709, 339 P.2d 567] that 'confidential reports of an accident procured for the use of an insurance company's attorney were protected by the attorney-client privilege.' [Citation.] [p] Finally, Chadbourne left intact Gene Compton's approval of the 'prevailing rule' that ' " '[a]ccording to the weight of authority, a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.' [Citations.]" ' [Citation.]" (Travelers Ins. Companies v. Superior Court, supra, 143 Cal.App.3d at pp. 451-452, 191 Cal.Rptr. 871.)

Real party contends that the "dominant purpose" test should be applied to the communications and that the dominant purpose of these communications to the claims agent was to settle the claim, not to assist the as-yet-undesignated attorney. But application of the "dominant purpose" test, as explained in Holm v. Superior Court (1954) 42 Cal.2d 500, 267 P.2d 1025, does not lead to real party's conclusion. Holm suggested that there would be no privilege "in a communication which is not made to or for further communication to an attorney, although the communication might have some connection with...