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


No. 15521.

Decided: December 15, 1952

Dion R. Holm, City Atty., City and County of San Francisco, Donald J. Kropp, Deputy City Atty., San Francisco, for petitioner. Shirley, Saroyan, Calvert & Barbagelata, San Francisco, for respondents.

A writ of prohibition is sought by this proceeding to prevent the respondent, court from enforcing an order of inspection granted under § 1000 of the Code of Civil Procedure. This section provides that: ‘Any court in which an action is pending, or a judge or justice thereof may, upon notice, order either party to give to the other, within a specified time, an inspection and copy or permission to take a copy, of entries of accounts in any book, or of any document or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein.’

The controversy arises out of an action for damages filed against the City and County of San Francisco by Wynona Bell on or about May 8, 1952. As plaintiff she alleges that she sustained injuries while riding as a passenger on a bus operated by the City because of the negligence of the driver, one Raymond Gnecco.

It appears that immediately after the accident photographs were taken of the passenger and the bus. The driver made his report of the circumstances connected with the accident, which was transmitted to the officials in charge of the transportation service. Later a representative of the City presented to the passenger a written statement made up by him which she signed. No copy of this statement was given to her, and she now has none. She does not recall whether the statement relates to the circumstances of the accident, or to her alleged injuries, or to both, and she has no way of telling its exact contents. But be that as it may, it would seem that the defendant intends to hold her bound by it.

Plaintiff moved the court for an order directing the defendant to produce for inspection and copying the statement, the photographs, and the report of the bus driver. The motion was supported by her affidavit and also that of her counsel. Counter affidavits were filed denying the right of inspection. With these affidavits and the pleadings before it, the court made the order that the specified documents be produced and submitted to the plaintiff for her inspection.

The writ is sought on the grounds that the documents are privileged communications from a client to an attorney, and that the materiality of the documents has not been made to appear.

It would seem that the materiality of the documents is not open to question. The photographs of the passenger and the bus taken immediately after the accident could hardly fail to depict some circumstance about the event. The report of Gnecco, the driver, covering the accident is a statement by a party to the action, as is the statement by the plaintiff given to defendant's agent, and, as a declaration, each statement could be given in evidence. § 1870, subd. 2, C.C.P.

The pleadings by which the issues were framed were before the court and from these pleadings the materiality of the documents could be deduced. Union Trust Co. v. Superior Court, 11 Cal.2d 449, 81 P.2d 150, 118 A.L.R. 259. While a party is to be protected from unnecessary disclosure to others of the contents of his private books, papers and records, as is said in McKinley v. Southern Pacific Co., 80 Cal.App.2d 301, 315, 181 P.2d 899, 908, ‘no party has a right to refuse to produce any report or document which may have a bearing upon the facts of the pending litigation.’

Nor can it be said that any of the documents are privileged as petitioner contends. The photographs have simply recorded what any eyewitness could have seen. The statement of facts by the plaintiff was made to the defendant's agent. Certainly, the relationship of client and attorney did not exist between Wynona Bell and the City Attorney. They were dealing at arm's length. Although the report of Gnecco, the driver, originated with him, it does not appear to have been directed to any attorney. In fact the record does not disclose that Gnecco had any attorney at the time the report was made up. The report appears to be more of a statement of facts for study in the prevention of accidents than a communication from a client to his attorney. As is stated in Wigmore on Evidence, Section 2318, Second Edition, it is only those documents which the party has created as a communicating client, that are privileged.

In Construction Products Corp. v. Superior Court, 103 Cal.App.2d 403, 404, 229 P.2d 399, 400, it is said that ‘In determining the propriety of an order under section 1000, Code of Civil Procedure, it must be borne in mind that the trial court's action thereunder is discretionary and that all intendments are in favor of the validity of such order. Accordingly, such action will not be annulled unless a clear abuse of that discretion appears. Milton Kauffman, Inc., v. Superior Court, 94 Cal.App.2d 8, 16, 210 P.2d 88.’ The order here made does not appear to violate any fundamental right of the petitioner.

The alternative writ is discharged and the peremptory writ denied.

JONES, Justice pro tem.

GOODELL, Acting P. J., and DOOLING, J., concur.