Suezaki v. Superior Court of Santa Clara County

• Citation: 58 Cal.2d 166,373 P.2d 432,23 Cal.Rptr. 368,95 A.L.R.2d 1073
• Court: United States State Supreme Court (California)
• Decision Date: 19 July 1962
• Parties: , 373 P.2d 432, 95 A.L.R.2d 1073 Henry SUEZAKI and Grace Suezaki, Petitioners, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; Stanley L. CRAWFORD et al., Real Parties in Interest. S. F. 20975.

Page 368

23 Cal.Rptr. 368

58 Cal.2d 166, 373 P.2d 432, 95 A.L.R.2d 1073

Henry SUEZAKI and Grace Suezaki, Petitioners, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent Stanley L. CRAWFORD et al., Real Parties in Interest.

S. F. 20975.

Supreme Court of California, In Bank.

July 19, 1962.

Lewis & Fonnesbeck, Joseph F. Lewis, Sunnyvale, and William B. Boone, San Bruno, for petitioners.

No appearance for respondent.

Popelka, Graham, Hanifin & Bonney, B. J. Cougill, San Jose, and Geoffrey Van Loucks, Berkeley, for real parties in interest.

PETERS, Justice.

Petitioners Henry Suezaki and Grace Suezaki are plaintiffs, and Stanley L. Crawford and Golden States Leasing Company (the real parties in interest herein) are defendants in an action for personal injuries pending in the respondent court. Defendants' attorney hired an investigator to take motion pictures of plaintiff (Henry) without the latter's knowledge. By the use of interrogatories, answers to which, over defendants' objections, were compelled by the trial court, plaintiffs discovered the existence of the films, that they had been taken by an independent investigator, and delivered by him to defendants' attorney. Plaintiffs then filed a motion asking for the production and inspection of the films under the provisions of section 2031 of the Code of Civil Procedure. ¹ The motion was supported by a proper affidavit. Defendants opposed the motion. In their supporting affidavit the only opposition stated was that the films had been 'communicated to (attorney for defendants) for the confidential use in the preparation of the defense. * * *' The motion was denied, and plaintiffs (as petitioners herein) seek a writ of mandate requiring respondent court to authorize the inspection.

The record makes it abundantly clear that the denial was predicated solely on the belief of the trial court that the film was a privileged communication, and protected from discovery under the provisions of subdivision 2 of section 1881 of the Code of Civil Procedure. ² This fact appears not only in the memorandum opinion filed by respondent court, but in the trial judge's remarks at the time of oral argument on the motion. In other words, although the trial judge impliedly found that the film was within the scope of the examination permitted by subdivision (b) of section 2016, and also that he was satisfied that plaintiffs had made a sufficient showing of good cause for inspection, he was powerless to grant inspection under the rules announced in Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722, and in Grand Lake Drive In v. Superior Court, 179 Cal.App.2d 122, 3 Cal.Rptr. 621. Those two cases he interpreted as requiring the conclusion that the film was a privileged communication, and therefore not discoverable.

On this petition, plaintiffs contend that they are entitled to inspection as a matter of law. Defendants, on the other hand, contend that the order under review must be sustained because: (a) the facts indicate that there was no abuse of discretion; (b) the attorney-client privilege gives complete protection to the films; and (c) plaintiffs failed to show good cause for inspection. Neither party is entirely correct.

The issue as to good cause:

Good cause for the inspection must, of course, be shown by the moving party (Code Civ.Proc. § 2031, supra; Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 373-374, 388-391, 15 Cal.Rptr. 90, 364 P.2d 266). The nature and extent of the showing necessary to satisfy that requirement must, of necessity, vary with the circumstances presented in each individual case. Plaintiffs assert that they sustained this burden under the rule announced in the Greyhound case at page 388, 15 Cal.Rptr. at page 107, 364 P.2d at page 283, where it was stated: 'It follows that the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary. There is no requirement, or necessity, for a further showing.' These two sentences do not stand alone. The court was there discussing the fact that certain vehicles of discovery require a motion based on a showing of good cause, while others do not. It was pointed out that the reason for such distinction was to prevent abuse in those situations where it would be most likely to occur. Read in context, the two quoted sentences mean that in addition to the requirement that the material sought be 'within the scope of the examination permitted by subdivision (b) of Section 2016,' ³ the party seeking disclosure need show no more than that discovery 'may be granted without abuse of the inherent rights of the adversary.' The statute confines all vehicles of discovery to those matters which are 'relevant to the subject matter involved in the pending action,' and authorizes discovery of facts or matters which will not be admissible at the trial if the same are not privileged, but appear 'reasonably calculated to lead to the discovery of admissible evidence * * *' regardless of whether such relates to a claim or a defense. The same subdivision also incorporates those provisions of section 2019 which authorize the trial court to exercise its discretion in protecting parties from abuse or from any unjust or inequitable situation which might otherwise arise. It follows that in each case involving a motion for an order authorizing inspection there must be a showing that the thing sought to be inspected comes within the general classification of matters subject to discovery, and that inspection may be had without violence to equity, justice, or the inherent rights of the adversary. As also said in Greyhound (at p. 389, 15 Cal.Rptr. 90, 364 P.2d 266), such good cause may be shown in any manner consistent with the established rules of pleading and practice.

In the present case, under the showing made, the trial court found good cause to exist. It is true that its order is silent as to any such showing, but that is so because its conclusion that the films were privileged made such factor moot. However at several points during the oral argument the trial judge stated that he was satisfied that plaintiffs had shown a need for the films both in order to protect against surprise, and in order to prepare examination of the person who took the pictures. Such a finding is entirely consistent with the purposes of the discovery act, and supported by the showing made.

The films are not protected by the attorney-client privilege:

As indicated above, defendants urged and the trial court held that the rules announced in the Holm and the Grand Lake decisions required the conclusion that the films are within the attorney-client privilege. Such conclusion is unsound.

Grand Lake (supra, 179 Cal.App.2d 122, 3 Cal.Rptr. 621) is not in point on this issue. In that case the defendant hired an expert to examine and report on the 'slipperiness' of the premises on which plaintiff was alleged to have been injured. Plaintiff took the expert's deposition and asked several questions about the witness's findings, which questions the expert refused to answer on the ground that his findings were a part of a privileged report. The sole question before the court (insofar as the decision is pertinent to privilege) was whether or not the attorney-client privilege extended to such situation. Before determining that the privilege was not applicable, Justice Draper, the author of the opinion, carefully pointed out, at page 125, 3 Cal.Rptr. 621 (in a passage quoted by respondent court in its memorandum decision herein), that none of the questions called for the report which the expert had made to defendant's counsel, and that plaintiff specifically disclaimed any desire to inquire into that report. It was then stated: 'Thus no question as to the confidential character of any written or oral communication from the expert to the attorney who employed him is before us.' Thus, the court refused to consider the claimed confidentiality of matter transmitted from expert to attorney. This being so, the Grand Lake decision is not an authority for the proposition that the motion picture film involved herein is protected by the privilege.

The Holm case (supra, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722) involved a motion for inspection of several items gathered by the investigator, or claims adjuster, who was a regular employee of the San Francisco Municipal Railway, and which had then been transmitted in a report to the city attorney for the purpose of conducting the defense of a lawsuit arising out of a bus accident. Among the items plaintiff sought to inspect were her own written statement given to the investigator after the accident, the written report of the bus driver to the city setting forth his version of the accident, and a photograph of the scene of the accident taken by agents of the city. Because the decision therein held that the photograph was subject to the attorney-client privilege, it is here urged as controlling. ⁴ But the fortuitous similarity between a photograph and a motion picture constitute the sole similarity between Holm and the instant case. The underlying facts differ in the two cases.

When Holm was decided the present discovery statutes had not yet been passed. The only inspection then permitted was under old section 1000 of the Code of Civil Procedure, since repealed. The distinctions between the old law and the present one have already been pointed out (see Greyhound and its several companion cases in 56 Cal.2d, commencing at page 355, 15 Cal.Rptr. 90, 364 P.2d 266). The only applicability of the Holm decision to discovery today is that portion of the opinion that deals with the attorney-client privilege. The 1957 discovery act provides (in subd. (b) of § 2016) that nothing contained therein should be construed as changing the law of this state with respect to the existence of any privilege. Thus...