Payless Drug Stores, Inc. v. Superior Court

Opinion

ROUSE, J.

Petitioner, a corporate employer, seeks prohibition to prevent respondent court from enforcing its order issued November 5, 1975, which granted real party’s motion to compel production of an accident report prepared by an employee of petitioner. We may properly entertain a petition for extraordinary relief when, as here, the petitioning party asserts that to compel production would violate a privilege.

(Sav-On Drugs, Inc.

v.

Superior Court

(1975) 15 Cal.3d 1, 5 [123 Cal.Rptr. 283, 538 P.2d 739].)

The record shows that on October 7, 1975, real party plaintiff noticed a motion to compel production of accident reports dated February 16, 1974 and April 4, 1974, prepared by petitioner’s employees after a slip and fall accident. A declaration by real party’s attorney declared that the reports in question “contain and constitute relevant evidence in that they

[990]

will establish the time of the accident, the time the salad oil was cleared away, the identity of the person clearing up the salad oil and the identity of any witnesses known to defendant.”

Petitioner opposed the motion, asserting that the reports were privileged under the attorney-client privilege. In support of its opposition, petitioner attached declarations of its attorney, its administrative vice president and its corporate secretary (who was custodian of corporate documents), and of the claims manager for Harbor Insurance Company, insurance carrier for petitioner at the time of the accident.

Petitioner’s attorney declared that the accident reports were prepared on preprinted forms which were supplied by Harbor Insurance Company to petitioner and that the reports were contained in materials forwarded by the insurance carrier to his law office on May 18, 1974, when the defense of the lawsuit was assigned to that office.

The declaration of the custodian of petitioner’s corporate documents confirmed the existence of two accident reports:- the first, in longhand, dated February 16, 1974, completed by James Haughy in the course and scope of his employment on the managerial staff of Store No. 22; and the second, dated April 4, 1974, a typewritten transcription of the longhand report by Mr. Haughy signed by Joel Sitz, manager of Store No. 22. The custodian’s declaration stated that' “These accident reports are required by Pay Less to be made out by Pay Less management employees following any accident in a given Pay Less store.