Carroll v. Superior Court

267 P.2d 1037, 42 Cal. 2d 874, 1954 Cal. LEXIS 220

• Court: California Supreme Court
• Decided: March 12, 1954
• Docket: S. F. 18771
• Status: Published

Opinions

SHENK, J.

The petitioner seeks a writ of prohibition to restrain the respondent court from enforcing its order for the inspection of certain photographs in his possession. An alternative writ was issued.

The order was made in an action entitled Presley v. Pacific Greyhound Lines, now pending in the respondent court. The plaintiff therein seeks to recover damages allegedly suffered by him from injuries received while riding on the defendant’s bus and caused by defendant’s alleged negligence in operating the bus. Before trial in that action the plaintiff moved under section 1000 of the Code of Civil Procedure for an order permitting him to inspect and copy photographs in the possession and control of defendant and its attorney, Francis Carroll, the present petitioner.

Affidavits were filed in behalf of the respective parties. The affidavit on behalf of the plaintiff was made by his counsel. It avers that the defendant and its attorneys have possession of photographs of the scene of the accident depicting the “condition of the said Greyhound Bus following the said accident, skid marks, debris, the condition of the highway following said accident and other material and relevant evidence as to the occurrence of said accident.” An affidavit in opposition to the motion was also filed. It states that the photographs were taken by the agents of defendant for the purpose of delivering them to its attorneys and were in fact taken and delivered to the attorneys to enable them to prepare a defense to the action. It is insisted that the privilege of attorney and client attaches to the information contained in the photographic evidence.

The court granted the motion and ordered the inspection. The defendant and the petitioner have refused to comply with the order and are threatened with punishment for contempt. The petitioner seeks to restrain the trial court from proceeding with the enforcement of its order by this application for the writ of prohibition.

The questions presented in this case are substantially the same as those involved in the companion case of Holm, v. Superior Court, ante, p. 500 [267 P.2d 1025, 268 P.2d 722], this day filed. It was there held that where the right to assert the privilege is clear the bill of discovery cannot be used to defeat it; that where a communication is between corporate employees and is embodied in photographic evidence for redelivery to a corporate attorney, the privilege attaches if the photographs were created as a means of communicating information to the attorney, and that where the dominant purpose is the transmission of information to an attorney in his professional capacity it is immaterial that there are other incidental purposes not entitled to the privilege.

In the present case there is no conflict with the petitioner’s affidavit showing that the photographs were taken for the express purpose of being transmitted to the defendant’s attorneys to be used in the threatened litigation. The petition for the writ of prohibition reasserts such a purpose and neither the respondent court nor the real parties in interest have answered it. The facts before the trial court required a determination that the transmittal of the photographs to the attorneys was for the purposes of the litigation and that this was the dominant if not the sole purpose. To deny the privilege in such circumstances was an abuse of discretion.

Let the peremptory writ issue as prayed. The alternative writ is discharged.

Gibson, C. J., Edmonds, J., Schauer, J., and Spence, J., concurred.