Opinion
For Opinion on Hearing, see 36 Cal.Rptr. 468, 388 P.2d 700.
Cresswell, Davis & Church, Oakland, for petitioner.
Hoberg, Finger, Brown & Abramson, San Francisco, for real parties in interest.
SHOEMAKER, Justice.
Petitioner D. I. Chadbourne, Inc., a corporation, seeks this writ of mandate to compel the Superior Court to set aside its order requiring disclosure of the statement This matter arises out of an action for personal injuries commenced by William and Constance Smith, in which it was alleged that due to the negligence of the petitioner herein, Constance Smith, on May 4, 1961, fell on a sidewalk abutting the premises commonly known as 684 Geary Street, San Francisco. The Smiths, real parties in interest, filed written interrogatories pursuant to section 2030 of the Code of Civil Procedure, addressed to petitioner. Question 6, subdivision (d), requested in substance all statements obtained by petitioner from any person or persons who performed work on the sidewalk referred to in the complaint. Petitioner refused to attach or permit inspection by the real parties of the May 8, 1961 statement obtained from its employee, John Makuszi, who did concrete work on the sidewalk in question, both immediately before and after the accident.
Thereafter, the real parties filed a notice of motion to inspect, photograph and copy the said statement of Makuszi. The motion was made pursuant to sections 2016, subdivision (b), and 2031 of the Code of Civil Procedure, on the ground that good cause existed. Said motion was based on the files in the action, the declaration of Michael J. Kennedy, and petitioner's answers to the interrogatories.
The declaration by counsel Kennedy states in substance as follows: that Makuszi has knowledge of relevant facts with respect to the injury involved; that he did work on the sidewalk in question both before and after the date of the alleged accident; that he is unavailable for taking his deposition; that he is in the Armed Forces in Germany; that the said statement contains information which may lead to discovery of evidence relevant to the action and that good cause exists for allowing plaintiff to obtain a copy of the statement since it may be used for purposes of impeachment and may contain admissions against the interest of the defendant.
The declaration made by Louis Rovens in opposition to the motion states as follows: 'That he is an adjuster and investigator employed by ROY F. OWEN COMPANY, a California Corporation, and that said company are the exclusive adjusters and investigators for Republic Indemnity Company of America, the insurance carriers for D. I. CHADBOURNE, INC., a corporation, and that at the time of the accident in question which forms a basis for the above-entitled litigation: that all accidents and events experienced by the insureds of Republic Indemnity Company of America in the City and County of San Francisco that are likely to result in or lead to litigation are referred to ROY F. OWEN COMPANY for the purpose of investigating and preparing the defense of such litigation;
'That CRESSWELL, DAVIS & CHURCH, Attorneys at Law are the attorneys for Republic Indemnity Company of America in the City and County of San Francisco, and that all reports, investigation and information which are obtained relative to such incidents and relative to the accident in question were obtained at the direction of Republic Indemnity Company of America for transmittal to their attorneys.
'That the policy of insurance with Republic Indemnity Company of America requires D. I. CHADBOURNE, INC. to cooperate and furnish to ROY F. OWEN COMPANY, as agents for Republic Indemnity Company of America, all necessary information and data, necessary and incidental to the defense of any claims and suits;
'That the statement taken from JOHN MAKUSZI was taken by me as part of the investigation and preparation for defense, and was taken after the plaintiff herein had engaged the services of her attorneys and the said statement taken from JOHN MAKUSZI was intended to be confidential and made for the purpose This declaration was not contradicted by the real parties.
After hearing, the court, finding that good cause was shown, ordered petitioner to allow the real parties to inspect, photograph and copy the statement of Makuszi.
The sole issue is whether the statement of Makuszi, the employee of petitioner, is privileged.
The real parties' support for the court's order is that upon the facts we have just recited, it was within the court's discretion as to whether or not good cause had been established for an order of discovery.
We do not agree with the real parties' position. In our view, the facts in the present case compel the conclusion that the order involved was erroneous as a matter of law under the rule announced in the case of Gene Compton's Corp. v. Superior Court (1962) 205 Cal.App.2d 365, 23 Cal.Rptr. 250, and followed by us in Atchison, Topeka & S. F. Ry. Co. v. Superior Court (1962) 208 A.C.A. 71, 25 Cal.Rptr. 54, to the effect that when the evidence shows that the only purpose in obtaining statements of employees of a corporation is for the purpose of being transmitted, and are transmitted, to the corporation's insurance carrier for ultimate use by the carrier's attorneys in defense of the insured in case of eventual litigation, the statements are privileged.
The real parties, in their answer to this petition, contend that 'Petitioner failed to satisfy the Respondent Court that the dominant purpose for which the statement taken was for transmission to attorneys for use in subsequent litigation,' and that the court 'gave effect to the public policy favoring discovery by holding that there had been an insufficient showing of privilege to deny Real Parties in Interest the right to inspect the statement petitioner was ordered to produce.'
The answer to the above contentions, from the record before us, is that it does not once appear that there was any evidence before the trial court of any other purpose for which the statement was given by the employee, other than for transmission to the employer's attorney for the purpose of the litigation, which had already been commenced at the time the statement was given.
Thus, while it is true that the trial court must, in the first instance, make a factual determination of whether the privilege exists or not (Holm v. Superior Court (1954) 42 Cal.2d 500, 508, 267 P.2d 1025, 268 P.2d 722; Safeway Stores, Inc. v. Superior Court (1961) 193 Cal.App.2d 270, 273, 14 Cal.Rptr. 243), when the facts are undisputed, as in the instant case, it is a question of law whether the privilege should be applied or not. (Gene Compton's Corp. v. Superior Court, supra; Atchison, Topeka & S. F. Ry. Co. v. Superior Court, supra.)
The real parties contend that the cases of San Francisco Unified School Dist. v. Superior Court (1961) 55 Cal.2d 451, 11 Cal.Rptr. 373, 359 P.2d 925, 82 A.L.R.2d 1156, and Safeway Stores, Inc. v. Superior Court, supra, are determinative of this writ. This contention is without merit. These cases are readily distinguishable upon the facts and hence are not applicable here.
The petitioner made an adequate showing before the trial court to invoke the attorney-client privilege, and the petition for writ of mandate is granted.
KAUFMAN, P.J., and AGEE, J., concur.