DE LOS SANTOS v. ROBINSON

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

Jesse Richard DE LOS SANTOS, a minor by Sandra De Los Santos, his Guardian Ad Litem; Sandra De Los Santos, Petitioners, v. SUPERIOR COURT OF the COUNTY OF LOS ANGELES, Respondent, Zed William ROBINSON; Shaefer Ambulance Service, a corporation; I. Martin Feldberg, doing business as I. Martin Imports; A.M.F., Inc.; Real Parties in Interest.

Civ. 57111.

Decided: February 05, 1980

Dolin & Rothman by David B. Bloom, Los Angeles, for petitioners. Omansky, Lyden & Lazarus by Leonard Harvey Lazarus, Encino, for real parties in interest Robinson and Shaefer Ambulance Service. Hillsinger & Costanzo, Los Angeles, for real party in interest A.M.F., Inc.

Petition by Jesse De Los Santos, a minor, and by his mother Sandra De Los Santos, personally and as Jesse's guardian ad litem, to mandate the superior court to deny real parties' motion to compel Sandra to answer questions at her deposition. The issue is whether conversations between the minor and his mother, assertedly acting in her capacity as guardian ad litem, are protected by the attorney-client privilege. (Evid.Code, s 950, et seq.) Pursuant to an order of the Supreme Court we issued an alternative writ.

In March 1976 Jesse De Los Santos, then nine years old, was injured when the bicycle he was riding collided with a vehicle owned and operated by real parties Shaefer Ambulance and Zed Robinson. Jesse and his mother, the latter both individually and as Jesse's guardian ad litem, subsequently filed an action for personal injuries charging Shaefer Ambulance and Robinson with negligence and charging the seller and manufacturer of the bicycle with products liability.

In February 1979 real parties took Sandra's deposition. Among other subjects they inquired into her various conversations with Jesse. Sandra's counsel advised her not to answer, on the ground that her conversations with her son were protected by the attorney-client privilege in that her son's answers had been transmitted to counsel for use in preparation of the case. Specifically, Sandra was advised not to answer the following questions:

1. “When was the first time Jesse described for you how the accident happened?”

2. “When did Jesse give you that information that the chain broke or fell off the front sprocket?”

3. “Did you ever ask Jesse whether or not he had any trouble stopping the bicycle at any time before the accident?”

In June 1979 the trial court granted the motion of real parties to require Sandra to answer these and other questions on her conversations with her son about the accident.

Sandra asserts her conversations with Jesse are protected by the attorney-client privilege in that as Jesse's guardian ad litem she elicited information from him in order to transmit it to her and her son's attorneys, with whom she had been in touch at the time her son was still in the hospital. (Evid.Code, s 950, et seq.) The attorney-client privilege protects confidential communications between a client and his attorney conducted in the course of that relationship (Evid.Code, ss 952, 954). It also protects confidential communications between the guardian of a ward and the ward's attorney (Evid.Code, s 951). But the communications petitioners seek to protect were neither communications by a client to his attorney nor communications by a guardian to her ward's attorney (Evid.Code, s 953(b)). Rather, they were communications of a child to its parent, who also happened to be its guardian. Information acquired by a parent from her child and information acquired by a guardian from her ward remain subject to discovery (Evid.Code, s 911), and the attorney-client privilege does not make such information confidential, even though the information is for use in a pending lawsuit.

But to the foregoing general rule there is an exception. If disclosure of information by the minor client to the guardian is “reasonably necessary for the transmission of the information” to the minor client's attorney, then it may qualify as a confidential communication to counsel and fall within the attorney-client privilege (Evid.Code, s 952). As the court said In re Terry W. (1976) 59 Cal.App.3d 745, 748, 130 Cal.Rptr. 913, 914:

“There are undoubtedly situations where a communication from child to parent falls within the attorney-client or other professional privilege. Where, for example, the communication to the parent is to further the child's interest in communication with, or is necessary for transmission of information to, a lawyer (Evid.Code, s 952), a physician (Evid.Code, s 992), or a psychotherapist (Evid.Code, s 1012), the communication is protected by the pertinent statutory privilege.”

At bench, the existence of reasonable necessity for communication of information by the minor client to his attorney through the intermediary of his guardian ad litem presents a question of fact. If the minor were four years old, the need for an intermediary would appear conclusive. If the minor were over 14, the need for an intermediary would be unlikely. At the time of the accident the minor was nine years old, which suggests a borderline case. Because the trial court assumed that communication of information from ward to guardian was not privileged under any circumstances, the necessary question of fact was not determined.

Let a peremptory writ of mandate issue directing respondent court to vacate its order of June 25, 1979, granting the motion of the real parties in interest to compel answers on deposition of Sandra De Los Santos, as Guardian ad Litem, and with instructions to determine whether an intermediary for the transmission of information from this particular minor client to his attorney was reasonably necessary, and, if the court so finds, to sustain the claim of attorney-client privilege.

FLEMING, Associate Justice.

ROTH, P. J., and BEACH, J., concur.