Clark v. Superior Court

California Court of Appeal Feb 1, 1960 No. Civ. 19134Published

Before: Kaufman

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Holding. The court held that a plaintiff is entitled to inspect and copy a recorded statement made to a defendant's insurance investigator because the statement is within the defendant's control, is not privileged, and the plaintiff demonstrated good cause.

Issues

Whether a statement held by a defendant's insurance company is within the defendant's 'possession, custody or control' under Code of Civil Procedure section 2031.
Whether a plaintiff's statement to an insurance investigator is protected by attorney-client privilege.
Whether a plaintiff demonstrated 'good cause' to inspect and copy their own recorded statement.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“the attorneys for the insurance company must be treated as the defendants’ attorneys and any material which is in their possession, custody or control solely because of this relationship is also in the possession, custody or control of the defendants”

“A statement is not privileged when the element of confidentiality is lacking.”

“Plaintiff does not remember what questions were asked of him nor what answers were given by him and has never been given a copy of the statement.”

[578]

KAUFMAN, P. J.

The petitioner is the plaintiff in a personal injury action pending in the superior court against Arthur J. Swanson and Eleanor Swanson, the real parties in interest.

Plaintiff, on April 15, 1958, was employed by the defendants for the purpose of performing work on the roof of their home. In connection with this work defendants furnished plaintiff with a ladder for his use in ascending to the roof of their home. While plaintiff was ascending the ladder, the bottom of it slid backwards causing him to fall. He landed on top of the ladder sustaining injuries. Plaintiff alleges in his complaint that his injuries resulted from the fact that the said ladder was dangerous and unsafe in that it did not rest securely upon the ground. Defendants answered the complaint denying negligence and alleging the defense of unavoidable accident and contributory negligence.

On or about April 21, 1958, an investigator for the defendants’ liability insurance company contacted the plaintiff. This investigator, accompanied by a shorthand reporter, asked plaintiff questions concerning the circumstances of his fall and injuries. The questions and answers were recorded. This unsigned statement is in the possession, custody and control of the insurance company’s general counsel.

On November 25, 1959, plaintiff filed a “Notice of Motion to Inspect, Photograph and Copy” this stenographic statement and an affidavit alleging that the above questions and answers were recorded; that he does not recall the questions asked of him nor his answers; and that he has not been given a copy of the transcription of these recorded questions and answers. He further alleges that his attorney has requested a copy of said transcript but that said request was refused.

A hearing on the above motion was held in the respondent superior court on December 1, 1959, and the motion was denied. Plaintiff now seeks a writ of mandate requiring the respondent court to order the inspection, photographing and copying of the said statement.

Section 2031 of the Code of Civil Procedure under which the above motion was made provides in part:

“Upon motion of any party showing good cause therefor . . . the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing ... of any designated documents . . . relating to any of the matters within the scope of the examina

Clark v. Superior Court

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KAUFMAN, P. J.

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