SCHAUER, J., Dissenting. It is my view that petitioner has not shown that the trial court abused its discretion in refusing the inspection, and that the writ should be denied.
From the record it appears that in September, 1955, petitioner (sometimes herein called plaintiff) suffered personal injuries resulting from alleged negligence of Southern Pacific Company, the real party in interest herein. The following day a claims investigator of Southern Pacific (sometimes herein called defendant) visited petitioner in the hospital and took his written statement “about how the accident occurred and about the injuries sustained by Petitioner.” Petitioner signed the statement, but has received no copy thereof. In November, 1955, he filed an action against Southern Pacific in respondent court, seeking recovery for his injuries, and at the same time moved under section 10001 of the Code Of Civil Procedure for an order directing Southern Pacific to permit plaintiff or his attorneys to inspect and copy the statement he had given the claims investigator. The motion was supported by affidavits of plaintiff and one of his attorneys, but no counteraffidavits were filed. The motion was denied, and upon being later twice renewed by plaintiff was both times again denied. Plaintiff then filed this petition for mandate, stating that “the question to be decided ... is [490]whether, on the showing made, Respondent Court had jurisdiction to deny the . . . motion for inspection . . . That . . . Respondent erroneously refused to grant your Petitioner an inspection of this statement and therefore divested itself of jurisdiction.”
The petition for mandate and plaintiff’s affidavits allege that among the issues in plaintiff’s action are defendant’s negligence and plaintiff’s contributory negligence; that plaintiff’s statement secured by the claims investigator “is to be used by the defendant at the time of trial” of the action; that plaintiff does not remember what he said in the statement ; that the evidence contained therein is material to the issue of defendant’s liability and of plaintiff’s contributory negligence; that the statement would be admissible in the trial of the action.
No claim of unfairness, fraud, inducement, coercion or overreaching in respect to the statement is made.
Defendant, in answer to the petition for mandate, avers that it has filed an answer to plaintiff’s complaint in the basic action, alleging that plaintiff was guilty of contributory negligence; that its claims adjuster took the signed statement from plaintiff but that it “has not yet determined whether or when said statement will be used in said pending action”; that at the second hearing on plaintiff’s motion defendant’s counsel offered to permit plaintiff to inspect and copy the statement upon the condition that plaintiff would execute an affidavit that he did not remember the facts and circumstances of the alleged accident and that inspection of the statement was necessary to refresh his memory; that such offer of counsel was not accepted.
Petitioner, in reliance upon Holm v. Superior Court (1954), 42 Cal.2d 500 [267 P.2d 1025, 268 P.2d 722], urges that the trial court had no discretion but to order the inspection he sought. In that personal injury ease, contrary to the present situation, the trial court, rather than refusing to order the inspection, granted plaintiff’s motion to inspect a statement obtained from plaintiff by defendant’s claims investigator. Defendants then petitioned for prohibition to restrain the court from enforcing its inspection order. This court held, adversely to defendants’ contentions, that the statement was not within the confidential attorney-client relationship and that it could properly be reached under section 1000 of the Code of Civil Procedure (pp. 505-508 of 42 Cal.2d), and denied the writ as to the statement.
[491]The Holm ease does not, however, hold that the trial court would have no jurisdiction in any case to deny a motion for inspection nor is it authority for the proposition that it is an abuse of discretion for the trial court to deny inspection of such a statement regardless of the circumstances of the particular ease. The true rule is that the trial court’s action with respect to an inspection sought under section 1000 is discretionary within the field of reason and justice, that all intendments are in favor of the validity of the court’s order, and that the order will not be interfered with unless a clear abuse of discretion is shown. (See Union Trust Co. v. Superior Court (1938), 11 Cal.2d 449, 464 [81 P.2d 150, 118 A.L.R. 259]; Construction Products Corp. v. Superior Court (1951), 103 Cal.App.2d 403, 404 [229 P.2d 399]; Milton Kauffman, Inc. v. Superior Court (1949), 94 Cal.App.2d 8, 16 [210 P.2d 88]; Shell Oil Co. v. Superior Court (1930), 109 Cal.App. 75, 79-80 [292 P. 531]; Maclay Rancho Realty Co. v. Superior Court (1927), 81 Cal.App. 471, 475 [254 P. 287]; see also Union Oil Co. v. Reconstruction Oil Co. (1935), 4 Cal.2d 541, 545 [51 P.2d 81].)
As a foundation for the making of an order of inspection, one of the indispensable requirements that must be made to appear by an affirmative and substantial showing is that the document that is sought to be inspected contains evidence that is material to an issue which is involved in the action or proceeding with respect to which the order of inspection is sought. (Union Trust Co. v. Superior Court (1938), supra, 11 Cal.2d 449, 454; Austin v. Turrentine (1939), 30 Cal.App.2d 750, 761 [87 P.2d 72, 88 P.2d 178]; Shell Oil Co. v. Superior Court (1930), supra, 109 Cal.App. 75, 80.) Thus, the affidavit in support of the demand for inspection must clearly show that the desired document contains competent and admissible evidence which is material to the issues to be tried, and in so showing the affiant cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material. (McClatchy Newspapers v. Superior Court (1945), 26 Cal.2d 386, 396-397 [159 P.2d 944]; Proctor & Gamble Mfg. Co. v. Superior Court (1954), 124 Cal.App.2d 157, 161 [268 P.2d 199]; Los Angeles Transit Lines v. Superior Court (1953), 119 Cal.App.2d 465, 467-468 [259 P.2d 1004]; Shell Oil Co. v. Superior Court (1930), supra, 109 Cal.App. 75, 80-87.) And in the exercise of its discretion in passing upon a motion for an inspection order, the court is not required to accept the [492]averments of the affidavits in support of the motion as final, but may conclude from other matters before it that in some respects the facts are otherwise. (See Maclay Rancho Realty Co. v. Superior Court (1927), supra, 81 Cal.App. 471, 475.) As also commented in the Maclay decision (p. 475 of 81 Cal.App.), even though the facts in a particular case might warrant the making of the inspection order, “it is elementary that where the action is discretionary with the trial court, the writ [mandate] here asked will not issue unless the refusal of the trial court . . . amounts to an abuse of discretion.”
Further, the statute (Code Civ. Proc., § 1000) was designed to aid in the administration of justice and to assist a party to an action to obtain the necessary disclosure of material facts even though the writings evidencing such facts are in the possession of the adverse party. (Union Trust Co. v. Superior Court (1938), supra, 11 Cal.2d 449, 456, 459, 462-463; Union Oil Co. v. Reconstruction Oil Co. (1935), supra, 4 Cal.2d 541, 545; Milton Kauffman, Inc. v. Superior Court (1949), supra, 94 Cal.App.2d 8, 15.)
Applying these several rules to the present case, it appears to me that petitioner, upon whom the burden of proof rests, has not shown himself entitled to the writ he seeks. In the first place, the affidavits in support of his motion to inspect allege only the legal conclusion that the evidence contained in the statement is material to the issues to be tried, and, further, he has not accepted defendant’s offer to produce the statement if plaintiff would execute his affidavit stating that he did not remember the facts of the alleged accident upon which his action against defendant is based. (If he does not need the statement to refresh his recollection as to the facts, then for what reason does he need it?) In addition, the complaint and the motion for inspection were filed only two months after the alleged accident, and at a time when plaintiff’s memory of the occurrence was presumably relatively fresh. As pointed out by defendant, there were thus ample grounds for the trial court, in the exercise of its discretion, to decide that plaintiff had not made an adequate showing of materiality or necessity for inspection in the interest of justice and that, to the contrary of petitioner’s claim, production of the statement would tend to suppress the truth and thwart the administration of justice rather than aid therein. If he did not remember the facts of the accident, and in truth needed the memorandum to refresh his memory, then upon his affidavit to that effect the statement would have been produced by de[493]fendant. If he did remember such facts and had told the truth in the statement, then he already knew the contents of the statement and there was no reason for him to see it in preparing a truthful case for presentation at trial. It will be remembered that petitioner makes no claim of unfairness, coercion or overreaching in respect to the statement. The only reason for him to see it under the circumstances presented to the trial court would seem to be, as defendant comments, that plaintiff would then know what kind of a story he could tell in court without being impeached by his own statement. When faced by a similar problem the court pointed out in Crisafulli v. Public Service Coordinated Transport (1950), 7 N.J.Super. 521 [72 A.2d 429, 430], that “All that is claimed is that such statement may perchance be contradictory of the case plaintiff is now preparing to prove. If her claim is honest, she need have no fear. If otherwise, her fears should be permitted to continue, in order that truth may prevail.” (See also Safeway Stores v. Reynolds (1949, Ct.App., D.C.), 176 F.2d 476, 477; McCoy v. District Court (1952), 126 Colo. 32 [246 P.2d 619, 622]; La Maida v. Miledna Realty Corp. (1944), 182 Misc. 690 [49 N.Y.S.2d 650, 651].) Ascertainment of the truth is an important part of the trial court’s function; it is all too often a difficult task. I am firmly convinced that this reviewing court should not, by what appears to me to be a straining of the law, curtail the means available to the trier of facts to discover the truth.
Since the record before us indicates that plaintiff has failed to show either the materiality of the desired document, or that its production will serve the cause of justice, the alternative writ should be discharged and the peremptory writ sought should be denied.
McComb, J., concurred.
Section 1000: "Any court in which an action is pending, or a judge 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 hook, 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. ...”