Union Oil Co. of Cal. v. Superior Court, Los Angeles County

• Decision Date: 27 May 1957
• Citation: 151 Cal.App.2d 286,311 P.2d 640
• Court: California Court of Appeals Court of Appeals
• Parties: UNION OIL COMPANY OF CALIFORNIA, a corporation, Petitioner, v. The SUPERIOR COURT OF the State of CALIFORNIA IN AND FOR the COUNTY OF LOS ANGELES, Respondent, and Roberta Lynn Williams, et al., Real Parties in Interest. Civ. 22375.

Page 640

311 P.2d 640

151 Cal.App.2d 286

UNION OIL COMPANY OF CALIFORNIA, a corporation, Petitioner, v. The SUPERIOR COURT OF the State of CALIFORNIA IN AND FOR the COUNTY OF LOS ANGELES, Respondent and Roberta Lynn Williams, et al., Real Parties in Interest.

Civ. 22375.

District Court of Appeal, Second District, Division 2, California.

May 27, 1957.

Hearing Denied July 24, 1957.

Ball, Hunt & Hart and Joseph A. Ball, Long Beach, for petitioner.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Asst. County Counsel, Los Angeles, for respondent.

Walter W. Heil, Beverly Hills, for real parties in interest.

RICHARDS, Justice pro tem.

The petitioner, Union Oil Company, seeks a writ of prohibition to restrain the respondent court from enforcing portions of an order for inspection. The order was made in an action in which the surviving heirs of Francis P. Williams and William P. Farry seek to recover damages from the petitioner for the wrongful death of the decedents, caused by poisonous gases while the decedents were on the petitioner's premises as business invitees, and alleged to have resulted from petitioner's negligent operation and management of its premises and equipment. The plaintiffs in the action filed a motion under section 1000 of the Code of Civil Procedure ¹ for an order permitting them to inspect, among other things, (1) written statements of petitioner's employees and independent witnesses who witnessed the accident, and (2) records of all inspections, orders, work orders, approvals and safety precautions issued or made prior to and immediately following the accident.

The affidavit filed on behalf of plaintiffs in support of the motion for the order of inspection alleged that the decedents, at the time of their death, were at the petitioner's refinery as employees of an independent contractor and that while so engaged at approximately 2 a. m. they were overcome by fumes and killed; that at said time the surviving widows and children of the decedents were at their respective homes; that the petitioner, for whom the work was being done, had approximately 40 workmen in the immediate vicinity of the accident, some of whom assisted the decedents in the work being done and participated in the attempted rescue of the decedents, and that there were also independent witnesses at the scene of the accident; that pursuant to a Petroleum Safety Order (TITLE 8, CALIFORNIA ADMINISTRATIVE CODE, SEC. 6761 )² said employees and independent witnesses made written statements and gave the statements to the petitioner and thereafter a committee was appointed to investigate the accident pursuant to the Petroleum Safety Order; that immediately following the accident each of the petitioner's employees having knowledge of the accident gave a written statement thereof to William Barber, Head of the Fire and Safety Department of petitioner, and a few days thereafter the same employees were questioned and the former statements which they had given were elaborated upon and given in more detail; that the signed witness statements and the committee investigation were each made pursuant to the Petroleum Safety Order and the members of the committee appointed were empowered by petitioner to make a report and recommendations as to unsafe or dangerous conditions on the premises and that the report of the committee contains evidence of the petitioner's participation, control and supervision over the work being done which resulted in the death of the decedents; that the written statements contain admissions against interest by the petitioner's employees and that the statements and report show the nature and extent of the control, care and supervision exercised by the petitioner over the work being done at the scene of the accident as well as the precautions taken by the petitioner for the safety of business invitees on the premises as well as for petitioner's own employees.

In opposition to the motion, identical affidavits were made by James E. Hill, petitioner's Supervisor of Fire and Safety, and William Barber, Supervisor of Fire and Safety at the petitioner's refinery where the accident occurred. Each of these affidavits states that on or about the date of the accident, affiant conducted an investigation in collaboration with the other affiant surrounding the accident and that this examination was conducted under the direction of the petitioner's legal counsel with instructions to make all reports and to submit all information obtained together with the witness statements to designated assistant counsel of the petitioner; that affiant interviewed many witnesses and caused witness statements to be prepared and signed and that all of such statements were forwarded to the petitioner's counsel 'pursuant to his instructions and by reason of the fact that claims would be made and suits could be filed' against the petitioner in connection with the accident; that no committee was appointed to investigate the accident; that all written memoranda and records relative to the conditions existing at the time of the accident were delivered to the office of the petitioner's legal counsel and there is no record of any action or recommendation by any investigating committee appointed for that purpose in connection with dangerous or unsafe conditions at the refinery.

The foregoing affidavits comprise all of the evidence which was before the court on the motion for an order of inspection. The petitioner resisted the motion upon the ground that the written and signed witness statements were privileged communications. After the hearing of the motion the court filed its written memorandum of decision stating in substance that the principal issue presented by the motion to inspect the witness statements and report of investigation was the dominant purpose for which they were prepared, and that where it appears that such records are to serve a dual purpose, one for transmittal to the attorney and one not related to that purpose, the court must determine which purpose predominates. The trial court's memorandum reviews the contentions of the parties and concludes that the written statements were made primarily to comply with the Petroleum Safety Order and incidentally for the uses of the petitioner's counsel, and thereupon ordered the petitioner to permit plaintiffs or their attorney to inspect and copy, among other matters, the written witness statements. The petitioner has refused to comply with the court's order and is threatened with contempt proceedings unless the respondent court is restrained by this application for a writ of prohibition.

The trial court's order for inspection is not appealable and prohibition is therefore the proper remedy. Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722; City & County of San Francisco v. Superior Court, 3, Cal.2d 156, 238 P.2d 581; Franchise Tax Board v. Superior Court, 36 Cal.2d 538, 225 P.2d 905.

In this proceeding the petitioner contends that the attorney-client privilege (Code Civ.Proc. sec. 1881, subd. 2) bars plaintiffs' inspection of the signed witness statements and therefore the order of the trial court was in excess of jurisdiction and an abuse of discretion. Petitioner asserts that its counter-affidavits clearly establish that the statements were taken by an agent of petitioner's counsel for the purpose of allowing the petitioner to be prepared to defend itself against a...