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District Court of Appeal, First District, Division 1, California.

ATLAS HEATING & VENTILATING CO., Ltd., Petitioner, v. SUPERIOR COURT, COUNTY OF ALAMEDA, Respondent, Stanley L. SOWERS, Real Party in Interest.

Civ. 20721.

Decided: October 22, 1962

Miller, Williams & Larson, San Fransco, for petitioner. Smith, Parrish, Paduck & Clancy, Oakland, for real party in interest.

Petitioner Atlas Hearing & Ventilating Co., Ltd., hereafter referred to as Atlas, seeks a writ of prohibition or certiorari restraining the respondent superior court from enforcing its order for the production of a statement given by one of petitioner's employees in connection with an automobile accident.1 We issued an alternative writ of prohibition.

Sowers, the real party in interest herein, is the plaintiff and Atlas and its employee, Richard Woehlre, are the defendants in an action for damages for personal injuries commenced in the respondent court. Woehlre is the driver of Atlas' truck which was involved in the accident and is alleged to have caused Sowers' injuries. On the day after the accident, one Buchanan, a casualty adjuster employed by the Aetna Insurance Company, petitioner's insurer, obtained from Woehlre a signed statement which is the subject of the controversy now before us.

Sowers moved in the respondent court for an order requiring the production of Woehlre's statement upon the grounds that such statement constituted or contained evidence, material and relevant to the pending action and was not privileged. Upon the hearing of such motion, the only evidence before the court was the declaration of Sowers' counsel in support of the motion and the declaration of Buchanan, the insurance adjuster, in opposition thereto. The court below granted the motion and ordered that Atlas produce for inspection by Sowers the above-mentioned statement of Woehlre.

The declaration of Edwin A. Clancy, Jr., counsel for Sowers, filed in support of the motion, stated as follows: that the allegations of agency and permissive use conftained in Sowers' complaint were denied by Atlas; that Clancy had attempted to locate Woehlre through a private investigator but had been informed and therefore believed that Woehlre was unavailable for a deposition or the taking of a statement about the accident; that a deposition which was taken of one Rose, also an Atlas employee and Woehlre's superior, indicated that Rose and no knowledge of Woehlre's whereabouts and had not seen him for several months; and that Clancy himself had no statements from Woehlre and had had no contact with the latter, either directly or indirectly.

The declaration of Buchanan, filed in opposition to the motion, stated as follows: that he made an investigation of the accident on the day after its occurrence; that such investigation was pursuant to a policy of liability insurance issued by Aetna Insurance Company to Atlas under which Aetna agreed to pay on behalf of Atlas all sums which Atlas should become legally obligated to pay as damages because of bodily injury or death, sustained by any person and arising out of the ownership, maintenance or use of the vehicle involved in the accident; that on the day after the accident he obtained a statement from Woehlre ‘for the primary purpose of transmittal to the attorneys for * * * Atlas * * *’ and that such statement was in fact transmitted to Atlas' attorneys; and that ‘[o]nly one original copy of said statement was made, and it was obtained for the primary purpose of aiding said attorneys in the course of their professional employment in defending any litigation arising out of said accident.’

Petitioner contends that Woehlre's statement falls within the attorney-client privilege set forth in subdivision (2) of section 1881 of the Code of Civil Procedure, that it is therefore immune from discovery and inspection and that the enforcement by the respondent court of its order for such production is in excess of its jurisdiction. We conclude that these contentions must be upheld.

It is now well settled that a report. or statement given by an employee of a corporate defendant in a personal injury case to his employer's insurer for the predominant purpose of transmission to attorneys to aid them in defense of the employer under the policy falls within the attorney-client privilege and hence in immune from discovery. (Gene Compton's Corp. v. Superior Court (1962) 205 A.C.A. 421 424–435, 23 Cal.Rptr. 250; Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709, 717–718, 339 P.2d 567, 74 A.L.R.2d 526; see also Holm v. Superior Court (1954) 42 Cal.2d 500, 506–510, 267 P.2d 1025, 268 P.2d 722; cf. New York Cas Co. v. Superior Court (1938) 30 Cal.App.2d 130, 132–133, 85 P.2d 965.)

The question presented to us in the instant case is essentially the same as that decided by this court in Gene Compton's Corp., supra. In that case, the insurance carrier of the corporate defendant, in the course of investigating an accident on the insured's restaurant premises, obtained an accident report from the restaurant manager and in addition two signed statements, one from the manager had one from another employee on duty. There, as here, the investigation was made pursuant to the provisions of a policy of liability insurance in effect. There, as here, the accident report and signed statements were obtained for the sole purpose of being transmitted to the attorney to be selected by the carrier to represent the insured in defense of any claim. This court held that the signed statements, as well as the report, being within the attorney-client privilege, were immune from discovery and inspection and we, accordingly, issued a peremptory writ of prohibition preventing the trial court from giving effect to its order for their production. Mr. Justice Bray in his exhaustive opinion in Compton's makes it clear that it is immaterial whether or not litigation has been in fact commenced or the attorneys to whom the signed statements are intended to be transmitted have in fact been selected, at the time such statements are obtained. (See Gene Compton's Corp. v. Superior Court, supra, 205 A.C.A. 421, 428 fn. 1, 431, 431 fn. 2, 23 Cal.Rptr. 250.)

The case of Gene Compton's Corp. governs the instant matter. The declaration of Buchanan, the adjuster, summarized by us above clearly establishes that Woehlre's signed statement was obtained for the primary purpose of being transmitted to, and was in fact transmitted to, the attorneys for Atlas so as to enable them to defend any litigation arising out of the accident. This was not contradicted by the opposing party. While the determination concerning the facts asserted as a basis for the privilege is for the trial court in the first instance (Holm v. Superior Court, supra, 42 Cal.2d 500, 507, 267 P.2d 1025, 268 P.2d 722) and while the party claiming the privilege has the burden of establishing the facts requisite for its assertion (Safeway Stores, Inc. v. Superior Court (1961) 193 Cal.App.2d 270, 273, 14 Cal.Rptr. 243), the record before us convincingly demonstrates that the privilege was established without contradiction. ‘It is clear, therefore, that the trial court's ruling was not based upon any conflict in the evidence, but solely upon the erroneous determination of the question of law as to whether * * * statements of employees made for the purpose of being delivered, and delivered to the insurer for ultimate use by the attorney when selected to defend the insured after litigation ensues, are privileged.’ (Gene Compton's Corp. v. Superior Court, supra, 205 A.C.A. 421, 436, 26 Cal.Rptr. 250, 260.)

The real party in interest contends that there was no showing that Woehlre was required to make the signed statement as part of his duties as an employee of Atlas and no showing that he intended the statement to be confidential. Real party in interest relies on Suezaki v. Superior Court (1962) 58 A.C. 169, 23 Cal.Rptr. 368, 373 P.2d 432. Under the cases establishing the rule of privilege in situations like the present one, on such showing, as advocated by the real party in interest, is required. In order to establish the privileged character of the statement it is only necessary to show that the insurer of the corporate defendant obtained it for the predominant purpose of transmittal to the insured's attorneys to aid them in defending against any claims. The Suezaki case does not hold to the contrary, does not deal with the instant problem, and is not here applicable.

On oral argument, the real party in interest urged that there was no showing that Woehlre was an employee of Atlas. This is an apparent afterthought and as a specious claim requires no extended consideration. The fair intendment of the declaration filed in support of the motion, below, and the apparent position of the real party in interest in his written opposition filed in this court, is that Woehlre was Atlas' employee. Buchanan's statement that he believed Woehlre to be an employee was never disputed and at no time did the real party in interest negate an employer-employee relationship and attempt to effect production of Woehlre's signed statement as that of an independent witness, discoverable within the holding of Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266.

Let a peremptory writ of prohibition issue prohibiting the respondent superior court from enforcing or otherwise giving effect to its order for production of the statement of Richard Woehlre herein referred to.


1.  While the prayer of the petition before us is for a writ of prohibition to ‘prohibit permanently respondent from issuing its order to produce the statement of Richard Woehlre * * *’ (emphasis added), it is clear from the statements of the petition and the record before us that said court has already issued its order for production and that petitioner seeks to restrain the enforcement of the order.

SULLIVAN, Justice.

BRAY, P. J., and MOLINARI, J., concur.

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