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Court of Appeal, Second District, Division 6, California.

Gloria LEMMO, et al., Plaintiffs and Appellants, v. STATE of California, Defendant and Respondent.

Civ. B007642.

Decided: December 15, 1986

Heily & Blase and Jean M. Dandona, Ventura, for plaintiffs and appellants. Montoya & Ruffolo and Roland Coleman, Ventura, for defendant and respondent.

Appellants are plaintiffs in an action seeking damages for wrongful death and personal injuries suffered in an automobile collision.   The issue presented is whether the trial court's judgment in favor of respondent/defendant California Department of Transportation (CALTRANS) should be reversed and the case remanded for retrial because appellants were denied discovery of statistical data and accident reports in respondent's possession.   We decide in the affirmative pursuant to the mandate of Davies v. Superior Court (1984) 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349.


In June 1979, Samuel Lemmo Sr. and his wife Gloria Lemmo traveled with Mr. and Mrs. Streeks from Ventura to Los Angeles to have dinner and attend an awards ceremony.   The two couples left Los Angeles for home around 10 p.m., taking Highway 101 north.   Mr. Streeks drove and the Lemmos were in the back seat.   On Highway 101, a car driven south by Anthony Joseph Capparelli crossed over the median area of the highway and collided head-on with the Streeks vehicle.   Mr. Lemmo was killed and Mrs. Lemmo suffered severe injuries.

At the time of the accident, Mr. Capparelli was under the influence of alcohol.   There was no barrier in the median section of the roadway at the crash site.

Mrs. Lemmo and her four children (appellants) filed an action for wrongful death and personal injuries against Mr. Capparelli and respondent CALTRANS.   Appellants alleged that the collision occurred as a proximate result of Mr. Capparelli's intoxication and the dangerous condition of the highway due primarily to the lack of a median barrier.

Prior to trial, appellants filed a declaration for subpena duces tecum, requesting that respondent turn over its records of vehicle accidents in which automobiles crossed into or through the highway median for the period 1969 through 1979, together with TASAS.1 and SWTRS 2 computer printouts for the period 1975 through 1979 covering the highway area five miles north and south from the collision site.   Respondent moved to quash the subpena duces tecum, contending that the actual accidents reports and the TASAS and SWTRS documents were confidential pursuant to Vehicle Code sections 20012 and 20014 3 and Edgar v. Superior Court (1978) 84 Cal.App.3d 430, 148 Cal.Rptr. 687.  Edgar ruled that a plaintiff in a civil action was not entitled to discovery of the details of other accidents contained within official accident reports mandated by the Vehicle Code because these reports were privileged under section 20012.   Later, State of California ex rel. Department of Transportation v. Superior Court (Thomsen) (1980) 102 Cal.App.3d 25, 162 Cal.Rptr. 78, decided that, on the basis of Edgar, TASAS data was also not discoverable because its source, official accident reports, was privileged.   The trial court in the present case did not conduct a hearing or render a decision on respondent's motion to quash.

During trial, appellants were ordered not to refer to or cross-examine respondent's expert witnesses on the subject of official accident data.   Two expert witnesses for appellants, traffic engineers, testified that the area of the highway where the accident occurred should have had a median barrier of some type installed before the collision.   They based their opinions primarily on the high volume of traffic, the inordinate amount of accidents, and the condition of the pavement in the accident site area.   As respondent notes, neither witness had experience in decisions by the state to install highway median barriers.

Respondent's expert witnesses testified that no factors existed to justify the installation of a median barrier at the collision site, and that such a barrier would actually cause more accidents than it would prevent.   One witness was a traffic engineer employed by CALTRANS to oversee its computerized highway data system.   Another of respondent's experts was a research engineer in the private sector who specialized in traffic safety.   He had been hired by CALTRANS especially for the present litigation to review its accident statistics and median barrier requirements.   A third expert witness for respondent, a transportation engineer employed at CALTRANS, had conducted an analysis of CALTRANS' data on accident history and patterns in preparation for his testimony.

In July 1984 per special verdict, the jury decided that the area of the highway in question was not in a dangerous condition.   It further found that Mr. Capparelli alone was liable to appellants, and awarded appellants damages.

Following judgment, appellants filed a motion for new trial, claiming that they were denied a fair trial due to a prejudicial error of law concerning the production and admission of evidence.   Appellants pointed out that, during the jury's deliberation, the California Supreme Court issued its opinion in Davies v. Superior Court, supra, 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349, in which it overruled Edgar and Thomsen, supra, upon which respondent had relied to refuse production of its official accident data.  (p. 300, 204 Cal.Rptr. 154, 682 P.2d 349.)   Appellants contended that respondent's refusal to disclose the official accident reports and the TASAS and SWTRS printouts denied them details of other, similar accidents and therefore substantially hindered their ability to prove the dangerous condition of the roadway and the foreseeable risk that the alleged defective condition, the lack of a median barrier, posed.

In opposition to appellants' motion, respondent contended that appellants waived their right to obtain more detailed accident data since they had failed to seek an order compelling production of the requested material and to utilize for trial the accident information that respondent had supplied them.   This information consisted of handwritten summaries of hundreds of accidents at and near the subject accident site that respondent had prepared especially for the present litigation.   Respondent further argued that there was no language in Davies indicating that the decision was to have a retroactive effect, and that, in any event, Davies did not rule that official accident reports were discoverable.   The trial court apparently agreed with respondent because it denied appellants' motion for new trial.   In so ruling, the trial court abused its discretion.


 The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is normally retroactive in its operation unless such an application would impair contract or vested property rights, the new rule was unforeseen by the litigants, or there has been substantial public reliance on the earlier rule.  (Peterson v. Superior Court (1982) 31 Cal.3d 147, 151–153, 181 Cal.Rptr. 784, 642 P.2d 1305.)   Here, none of these reasons exist to create an exception to the general rule of retroactivity and thus to preclude Davies' application.   It therefore governs our present analysis.4

Appellants assert that they were deprived of a fair trial by being denied discovery of official accident data.   They argue that, without information about the history of accidents contained in the data, their theory that the lack of a median barrier created a substantial risk for potential cross-median accidents was unprovable.   Appellants point out that, on the other hand, respondent was able to make full use of that data in preparing and presenting a defense.

Davies concluded that “information about other accidents which discloses neither the identity of the reporting party nor identifying material, although generated from accident reports, is not made confidential by sections 20012 and 20014.   We shall also conclude that this information is subject to discovery because it is related to the subject matter of a lawsuit arising out of an accident on a public highway and may lead to discovery of admissible evidence.”  (36 Cal.3d p. 294, 204 Cal.Rptr. 154, 682 P.2d 349.)   The plaintiff in Davies, who sought damages for personal injuries suffered in a vehicle accident, filed a writ of mandate to compel respondent superior court to order real party in interest CALTRANS to produce documents containing information about other accidents at the same location.   The Supreme Court issued an alternative writ, but elected to decide the question because it had statewide importance and was of a recurring nature.   It did not decide, however, the circumstances under which a party to a traffic accident could obtain discovery of actual accident reports since the petitioner did not request this data.   The petitioner's interrogatories had included questions about prior accidents, including whether the accidents had been recorded in the TASAS computer.  (p. 295 and p. 295, fn. 4, 204 Cal.Rptr. 154, 682 P.2d 349.)

In 1985, the Supreme Court in State of California ex rel. Dept. of Transportation v. Superior Court (Hall) 37 Cal.3d 847, 210 Cal.Rptr. 219, 693 P.2d 804, decided that an accused facing criminal charges arising out of an automobile accident had a “proper interest” within the meaning of section 20012 in discovering official reports of other accidents at the same location.   It based this ruling on Davies which concluded that accident reports have a very limited confidentiality requirement and on established principles of discovery.

We find that the rulings of Davies and its progeny, Hall, require that respondent provide appellants with both the TASAS printouts and the official accident reports for the time period and location that appellants requested.

The Davies court emphasized that the confidentiality accorded accident reports must be accommodated to further the rule of liberality encouraging extensive pretrial discovery.  (36 Cal.3d 299, 204 Cal.Rptr. 154, 682 P.2d 349.)   Since the Legislature intended only to keep confidential the identities of accident reporting parties and any information which might disclose identity, “TASAS data, diagrams, and other information about accidents in possession of the State ․ can be made available without indication of the identity of the reporting person or persons and can be disclosed without compromising the confidentiality of identifying information in the reports themselves.”  (p. 300, 204 Cal.Rptr. 154, 682 P.2d 349.)   In Hall, the Supreme Court found that the information contained in official accident reports could be discovered because it could be edited to delete any identifying information.  (37 Cal.3d 857, 210 Cal.Rptr. 219, 693 P.2d 804.)

The party seeking official accident reports in Hall was a criminal defendant who was charged with vehicular manslaughter.   The court stated that discovery of the material was required because the defendant had the requisite “proper interest” under section 20012 in obtaining reports of other accidents at the same location.  (p. 855, 210 Cal.Rptr. 219, 693 P.2d 804.)   The court noted that the right of an accused to seek discovery is grounded on the fundamental proposition that a defendant “ ‘is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.’ ”  (p. 852, 210 Cal.Rptr. 219, 693 P.2d 804.)

It is upon the basis of fairness in prosecuting their case that appellants challenge the trial court's decision to deny them access to TASAS data and the underlying accident reports that were separately ruled discoverable in Davies and Hall.   Davies notes that data derived from accident reports may reveal evidence suggesting that a highway defect may be a common contributory factor to accidents and therefore may aid plaintiffs in preparing for trial.  (36 Cal.3d p. 301, 204 Cal.Rptr. 154, 682 P.2d 349.)   Likewise, in Hall, the court observed that reports of other accidents at the same location may lead to relevant and admissible evidence.  (37 Cal.3d p. 856, 210 Cal.Rptr. 219, 693 P.2d 804.)

Equally significant, the court in Davies emphasized the importance of balancing the rights of reporting parties with the rights of litigants in actions involving public highway accidents.   It stated that, because official accident data may suggest that a highway defect is a factor in causing accidents, “[t]he evidence thus discovered might then qualify the party [seeking discovery] as a person having a ‘proper interest’ in obtaining disclosure of the accident reports themselves as permitted by section 20012.”  (36 Cal.3d p. 301, 204 Cal.Rptr. 154, 682 P.2d 349.) 5

 Consequently, there is no reason to deny appellants here, litigants in a civil action involving a collision on a public highway, the status of persons having a proper interest in obtaining access to official accident data.   Appellants sought the data specifically for the purpose of showing that the lack of a median barrier was a proximate cause of the subject accident.

In addition, the same rationale that was used in Hall to decide that the party requesting accident reports had a proper interest in discovering them, the fundamental importance of discovery, exists in the present case.   The goals of criminal discovery—ascertainment of the truth and the facilitation of litigation and the administration of justice—are identical to the purposes behind civil discovery.  (36 Cal.3d 299, 204 Cal.Rptr. 154, 682 P.2d 349;  37 Cal.3d 852, 210 Cal.Rptr. 219, 693 P.2d 804.)

Respondent contends that, irrespective of the mandates of Davies and Hall, it substantially complied with appellants' request for discovery by supplying them with accident data in the form of the prepared accident “summaries,” as well as some other materials which included accident diagrams and descriptions.   Therefore, respondent argues, the production of the requested data would have provided merely cumulative information, and, consequently, appellants were not prejudiced by the failure to receive it.   Respondent also argues that appellants waived any rights to discovery of this data by failing to move to compel its production, as well as to utilize the supplied materials either before or during trial.

Respondent's points are without merit.   We discuss first the contention of waiver.

Without suggesting that respondent's employees who prepared the summaries were dishonest, the basic fact remains that the summaries could not be verified as containing the equivalent data that respondent relied on in forming its defense.   This, then, defeated the purpose of discovery to allow both sides access to the same information.

 Furthermore, appellants concede that they did not move to compel production of TASAS printouts and accident reports because Davies had not yet been filed when trial was in progress and existing case law mandated the confidentiality of these documents.   Appellants justifiably did not pursue the issue.   The law does not require useless acts from litigants as prerequisites to seeking relief from the courts.  (Civ.Code, § 3532;  Van Gammeren v. City of Fresno (1942) 51 Cal.App.2d 235, 240, 124 P.2d 621.)

 In addition, appellants were not required to file a motion to compel production of official documents in order to preserve the issue for appeal.   If an objection to proceedings is not raised in trial court, there is no ruling that an appellate court can review.   Here, no such situation occurred.   The record reveals that appellants' counsel objected several times during trial to respondent's refusal to provide official accident data to appellants, and the trial judge overruled these objections on the basis that case law mandated the confidentiality of the information.   Moreover, appellants filed a motion for new trial on the ground that Davies mandated discovery of this information, but the trial court disagreed and denied the motion.   Thus, this case is properly before us.

 Lastly, respondent is not in a position to rely on the doctrine of waiver.   The reason that appellants failed to further seek production of the requested accident date—existing case authority—was the same justification that respondent relied on to refuse production of this information.  (See, Civ.Code, § 3515.)

Regarding the issue of prejudice, the Supreme Court has ruled that discovery of official accident data is not qualified by the availability of other evidence, nor should it be so qualified according to the principles of discovery.  Davies found that TASAS printouts were disclosable solely because their discovery might lead to evidence which could assist a party at trial.  (36 Cal.3d 301, 204 Cal.Rptr. 154, 682 P.2d 349.)   Further, the Court specifically declared in Hall that accident reports were discoverable without a showing that TASAS documents were inadequate for informational purposes.  (37 Cal.3d 857, 210 Cal.Rptr. 219, 693 P.2d 804.)   The court also noted that section 20012 provides that reports must be disclosed to any person with a proper interest without regard to a particularized need for any nonconfidential data.  (Ibid.)

We do not feel compelled to follow the recent case of Nelson v. Superior Court (1986) 184 Cal.App.3d 444, 229 Cal.Rptr. 94, wherein the appellate court held that a plaintiff must show good cause pursuant to Code of Civil Procedure section 2034, subdivision (a), in requesting the production of official accident reports.  (pp. 451–453, 229 Cal.Rptr. 94.)   First of all, in Nelson, the plaintiff had moved to compel production of those reports, calling into play the provisions of section 2034, subdivision (a) and Code of Civil Procedure section 2036.6  Here, appellants were prevented from so moving because of the state of the law;  therefore, the opportunity to make a showing of the need for the documents did not arise.

 Second, we disagree with Nelson's holding in light of the rulings in both Davies and Hall that official accident data must be disclosed without regard to the existence of other evidence or to any specific need for the information.  (36 Cal.3d 301, 204 Cal.Rptr. 154, 682 P.2d 349;  37 Cal.3d 857, 210 Cal.Rptr. 219, 693 P.2d 804.)   In other words, accident reports are automatically discoverable because they are relevant to the subject of automobile collisions on public highways.  (36 Cal.3d 294, 204 Cal.Rptr. 154, 682 P.2d 349;  37 Cal.3d 856, 210 Cal.Rptr. 219, 693 P.2d 804.)

Nelson concluded that Hall “affirmed that a showing of good cause is required even under criminal discovery rules to preclude the possibility the requesting party is engaged in a ‘fishing expedition.’ ”  (184 Cal.App.3d p. 452, 229 Cal.Rptr. 94.)   The Nelson court noted that the plaintiff in its case had based his showing of good cause on speculation that the reports might be able to assist him in finding liability on the part of the state.   (Ibid.)  The court thus opined that the plaintiff had made “no showing whatever that any of the other accidents was even remotely the same factually as plaintiff's.”  (184 Cal.App.3d 452–453, 229 Cal.Rptr. 94.)

This is putting the cart before the horse.   A plaintiff would be unable to determine that a prior accident in the same location involved the same conditions as the present one without reviewing the report on the prior accident.   Further, Hall stated only that a defendant must describe the information sought with a sufficient degree of specificity (37 Cal.3d 855, 210 Cal.Rptr. 219, 693 P.2d 804), logically meaning that good cause may be shown in a motion to compel production of accident data if the data to be disclosed is relevant to the time and place of the accident rather than to the similarity of facts.  (See, Hall, 37 Cal.3d 855, 210 Cal.Rptr. 219, 693 P.2d 804.)   We note that, not only did appellants in the present case limit their request for official data to a specific time period and area of the highway, they requested only a particular type of occurrence:  those involving cross-median accidents.

 We conclude that appellants, as parties to a lawsuit involving a vehicle accident on a public highway, have a “proper interest” within the meaning of section 20012 in discovering the nonconfidential portions of TASAS and SWTRS documents and the official accident reports on which these printouts are based.   Production is limited to the scope of the material sought which the record indicates is reasonably related to the date and location of the subject accident.

Like the Supreme Court in Davies and Hall, our decision is based on the goals of discovery, and is further cognizant of the purpose behind section 20012 to preserve the confidentiality of persons involved in accidents.   In addition, our opinion is supported by Davies' notation that the “[d]iscovery of a highway defect, and of the State's potential liability for damages caused thereby, serves the salutary purpose of encouraging remedial measures․  [T]here is no public policy favoring nondisclosure to shield the State against such liability.”  (36 Cal.3d 300, 204 Cal.Rptr. 154, 682 P.2d 349.)


 We further hold that the trial court's error in failing to grant appellants' motion for new trial was prejudicial and therefore reversible.   Appellants were deprived of access to information about accidents occurring on a public highway which, the record indicates, respondent fully utilized in preparing its defense and, ultimately, in convincing the jury that a defective highway condition did not exist.   Not only were appellants thus prevented from presenting their interpretation of the information which respondent used to defend itself, they were denied the ability to cross-examine respondent about its interpretation of the data.   Appellants were consequently denied a fair trial because they were deprived of the right to discover and offer relevant evidence on a material issue.

“Due process of law ․ means according to law.   It excludes all arbitrary dealings with persons or property.   It shuts out all interference not according to established principles of justice, one of them being the right and opportunity for a hearing:  to cross-examine, to meet opposing evidence, and to oppose with evidence ․  The power vested in a judge is to hear and determine, not to determine without hearing.   When the Constitution requires a hearing it requires a fair one, ․  To judge in a contested proceeding implies the hearing of evidence from both sides in open court, a comparison of the merits of the evidence of each side, a conclusion from the evidence of where the truth lies, application of the appropriate laws to the facts found, and the rendition of a judgment accordingly.”  (Estate of Buchman (1954) 123 Cal.App.2d 546, 560, 267 P.2d 73.)

 A fair hearing is a requisite of due process in both civil and criminal trials and its denial constitutes reversible error.   Therefore, once determining that a trial court has precluded the opportunity for a fair hearing, the reviewing court need go no further in evaluating the state of the record, as the lower court has acted in excess of its jurisdiction.  (2 Witkin, Cal.Procedure (3d ed.) Jurisdiction, § 234, p. 629;  9 Witkin, Cal.Procedure (3d ed.) Appeal, § 364, p. 366;  Estate of Buchman, supra.)

The judgment is reversed and remanded for retrial on the issue of respondent's liability to appellants.7

I respectfully dissent.

The trial court's rulings before and during the trial refusing to require Caltrans to produce the accident reports and TASAS were correct.   Such rulings were mandated by Vehicle Code sections 20012 and 20014;  Edgar v. Superior Court (1978) 84 Cal.App.3d 430, 148 Cal.Rptr. 687, and State of California ex rel. Department of Transportation v. Superior Court (Thomsen) (1980) 102 Cal.App.3d 25, 162 Cal.Rptr. 78.

I disagree with the majority holding that Davies v. Superior Court (1984) 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349. overruling Edgar and Thomsen, should be applied retroactively.   The majority points out that the normal rule of retroactivity of a Supreme Court decision establishing a new rule does not apply if, among other things, the new rule was unforeseen by litigants and there was public reliance upon the former rule.  (Neel v. Magana, et al., (1971) 6 Cal.3d 176, 193, 98 Cal.Rptr. 837, 491 P.2d 421.)

The inability of these litigants to foresee the rule in Davies and their reliance on the old rule is established by the uncontested fact appellants failed to even try to obtain a court order compelling the production of the data or reports that was said to be so critical to their case.   I part company with the majority when they hold appellants were not required to do “an idle act” by moving the court for such an order and at the same time holding that the parties should have foreseen the new rule set forth in Davies.


1.   TASAS stands for Traffic Accident Surveillance Analysis System, respondent's computerized accident retrieval system which stores data on all accidents occurring on the California State highways.

2.   SWTRS is the acronym for the computerized accident information system maintained by the California Highway Patrol.

3.   Section 20012 provides in part:  “All required accident reports, and supplemental reports, shall be without prejudice to the individual so reporting and shall be for the confidential use of the Department of Motor Vehicles and the Department of the California Highway Patrol, except that ․ the law enforcement agency to whom the accident was reported shall disclose the entire contents of the reports, ․, to any person who may have a proper interest therein, including, but not limited to, the driver or drivers involved, or the guardian or conservator thereof, the parent of a minor driver, the authorized representative of a driver, or to any person injured therein, the owners of vehicles or property damaged thereby, persons who may incur civil liability, including liability based upon a breach of warranty arising out of the accident, and any attorney who declares under penalty of perjury that he represents any of the above persons․”Section 20014 states:  “All required accident reports and supplemental reports and all reports made to the Department of the California Highway Patrol by any peace officer, member of the Department of the California Highway Patrol, or other employee of the Department of Motor Vehicles and the Department of the California Highway Patrol, shall be immediately available for the confidential use of any division in the department needing the same, for confidential use of the Department of Transportation, and, with respect to accidents occurring on highways other than state highways, for the confidential use of the local authority having jurisdiction over the highway.”Vehicle Code section 20008 defines “required reports.”  “The driver of a vehicle, ․ involved in any accident resulting in injuries to or death of any person shall within 24 hours after the accident make or cause to be made a written report of the accident to the Department of the California Highway Patrol or, if the accident occurred within a city, to either the Department of the California Highway Patrol or the police department of the city in which the accident occurred․”  The California Highway Patrol may require supplemental reports from a driver or other witnesses if the initial report is insufficient.  (Veh.Code, § 20009.)All future statutory references are to the Vehicle Code.

4.   We note only that respondent's attorney stated at oral argument on appeal that, as trial counsel, he had no knowledge of the order issued by the Supreme Court prior to its opinion in Davies commanding respondent to turn over its TASAS information to the plaintiff in that action.   Although we believe counsel, the state had the relevant knowledge and should have informed counsel accordingly.

5.   Moreover, the concurring opinion in Davies pointed out that section 20012 does not exclude a plaintiff in a civil action for damages stemming from a traffic accident from the class of persons with a “proper interest” in the contents of accident reports.  (36 Cal.3d 302, 204 Cal.Rptr. 154, 682 P.2d 349.)  “On the contrary, that section provides that law enforcement agencies receiving such reports shall disclose their ‘entire contents ․ to any person who may have a proper interest therein, including, but not limited to, the driver or drivers involved․’ ”  (Ibid.)

6.   Subdivision (a) of section 2036 provides:  “A party required to show ‘good cause’ to obtain discovery ․ shall show specific facts justifying discovery and that the matter is relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.”

7.   Appellants request that only the liability issue be retried since damages were already determined.

STONE, Presiding Justice.

GILBERT, J., concurs.