Opinion
Page __
__ Cal.App.2d __296 P.2d 97Herbert H. DOWELL, Petitionerv.The SUPERIOR COURT of the State of California, in and for the CITY AND COUNTY OF SAN FRANCISCO, Respondent.Civ. 17054.California Court of Appeals, First District, First DivisionApril 26, 1956Rehearing Denied May 25, 1956.
Hearing Granted June 20, 1956.
Barbagelata, Zief & Carmazzi, Rinaldo A. Carmazzi, San Francisco, for petitioner.
A. B. Dunne, G. Blandin Colburn, Jr., Dunne, Dunne & Phelps, San Francisco, for real party in interest, Southern Pacific Co.
PETERS, Presiding Justice.
Petition for a writ of mandate.
Petitioner, Herbert H. Dowell, on September 7, 1955, was injured as a result of the alleged negligence of respondent, Southern Pacific Company. On September 8th, while petitioner was in the hospital as a result of injuries received in the accident, a claims adjuster representing respondent took petitioner's statement concerning the circumstances surrounding the accident. This statement was signed by petitioner, but no copy of the statement, then or thereafter, was given to him. On November 10, 1955, petitioner filed on action against respondent for damages for the injuries received in the accident. Thereafter, petitioner moved, under section 1000 of the Code of Civil Procedure, for an order directing respondent to produce the [296 P.2d 98] statement and to permit petitioner to inspect or copy it. Such motion was supported by the affidavit of petitioner and of one of his attorneys. No counter-affidavits were filed. The trial court denied the motion. Later, petitioner renewed his motion supported by similar affidavits. Again, no counter-affidavits were filed. Again the trial court denied the motion, whereupon this petition for a writ of mandate was filed.
Mandamus is, of course, the proper remedy for an appellate court to determine whether the trial court abused its discretion in denying the order. (See cases collected 16 Cal.Jur. 2d 136, sec. 11.)
The petition for the writ of mandate and the affidavits filed in support of the motions for the order of discovery disclose that the issues raised by the pleadings in the main action of file are negligence of the respondent and contributory negligence of petitioner; that the claims investigator of respondent visited petitioner in the hospital the day after the accident and questioned petitioner for over an hour concerning the circumstances of the accident; that the statement was so secured with the intent of using it at the time of trial of the personal injury action; that neither petitioner nor his attorney were at any time given a copy of the statement. The affidavit of petitioner avers that he 'has no recollection of what the statement contains or says, and does not remember what affiant said in said statement * * *.
'That said evidence contained in this statement is material to the issue of liability * * *, that said statement would be admissible at the time of trial.' As already pointed out, no counter-affidavits were filed.
There can be no doubt that under such a state of facts the trial court had the power and jurisdiction to compel a discovery. That was the precise holding in Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722. There, as here, the prospective plaintiff in a personal injury action gave a signed statement to a claims investigator of the prospective defendant. There, as here, an application was made under section 1000 of the Code of Civil Procedure for an order of inspection of the statement. There the trial court granted the order. In the resulting prohibition proceeding it was held that the trial court had the power to make such an order. The Supreme Court pointed out that, while section 1000 is based on the ancient bill of discovery in equity, it is not limited by the ancient rigid requirements of such a proceeding. In this connection the court stated, 42 Cal.2d at page 506, 267 P.2d at page 1028: 'On the contrary, in Union Trust Co. [of San Diego] v. Superior Court, supra, 11 Cal.2d 449, at page 462, 81 P.2d 150, at page 157, this court stated: 'That the trend of judicial decisions is to relax the rules which relate to the taking of evidence by ancillary proceedings, of which the inspection of documents is one method * * *.' It further quoted from Corpus Juris, volume 18, page 1116, to the effect that provisions such as section 1000 are "remedial in their nature and should be liberally construed." * * *
'There is no question but what the documents here sought to be inspected are material and relevant to questions in issue, would be admissible in evidence, and are within the scope of Section 1000 of the Code of Civil Procedure'.
The distinction between the Holm case and the instant one is, of course, that in the Holm case the trial court granted the order of inspection while here it denied it. Respondent contends that section 1000 by the use the language that upon application a trial court 'may' grant the application is permissive only, and that the trial court has discretion to grant or deny the writ. There can be no doubt that section 1000 does confer discretion on a trial court, but it is a legal discretion, not an unlimited capricious one. Abuse of discretion on the part of a trial court can and should be controlled by an appellate court.
Was there an abuse of discretion here? We think there was. The Holm case necessarily stands for the proposition that where facts are averred identical to those here, the petitioner has made out a case that would support the granting of the [296 P.2d 99] order. What does that mean? It necessarily means that when a petitioner avers facts identical to those here averred he has made out, at least, a prima facie case. Prima facie he has established a right to the issuance of the order. At that point in the proceedings the facts averred warrant the order of inspection. The opposing party has the legal right to make a counter-showing by filing counter-affidavits, or by raising valid equitable defenses setting forth legal reasons why the order should not be granted. In such a case the 'discretion' of the trial court comes into play. But until a counter-showing is made there is nothing upon which this 'discretion' may operate. If, as here, no counter-showing is made, the petitioner is entitled to his order of inspection, and such right will and should be enforced by mandamus.
This conclusion is in accord with common sense and fair play. A lawsuit is not a game. It is an attempt to ascertain the true facts, and to apply the law to the true facts. Prodecures aimed at bringing out the true facts should be encouraged and liberally enforced. Our modern discovery procedures, pre-trial, etc., are all aimed at this worthwhile objective. It certainly would be a step backward, as well as being unscientific and illogical, if we were to hold that on a certain state of facts a trial court has the power to grant discovery, and that on identical uncontradicted facts another trial court has the power to deny it. That would mean that the right to such an order would depend on the whim or caprice of a particular judge, rather than on the merits of the application.
The appellate courts have frequently frowned upon any rule that would permit opposite conclusions being reached on the same state of facts. This was dramatically illustrated in the cases of Inyo Chemical Co. v. City of Los Angeles, 5 Cal.2d 525, 55 P.2d 850, and Southern Pacific Co. v. City of Los Angeles, 5 Cal.2d 545, 55 P.2d 847. There separate plaintiffs were injured by the same occurrence. They filed, in separate counties, separate actions against the defendant. In one, the trial court found that the accident was proximately caused by the negligence of the city. In the other, on substantially similar evidence, the trial court found that it was not. Admittedly, the evidence was conflicting on this issue, and either finding was supported. The supreme Court held, as a matter of law, that one of the cases had to be reversed. In so holding, the court, 5 Cal.2d at page 548, 55 P.2d at page 849, stated: 'It would be most anomalous for such decisions to stand, reaching diametrically opposite conclusions as to the legal effect of the same occurrence, where the essential facts are similarly presented, and are in most particulars undisputed. The rule that a reviewing court is bound by the findings of the trial court on conflicting evidence cannot apply to a situation such as this, where two lower courts, dealing with substantially the same evidence, have reached different conclusions of law, on the legal issue of whether from this evidence legal responsibility is imposed by the law upon the defendant. It is within the proper function of this court, upon petition for hearing, to eliminate this confusion, and to determine the legal effect of the evidence in both cases.' See also Ferroni v. Pacific Finance Corp., 21 Cal.2d 773, 780, 135 P.2d 569; Colburn Biological Institute v. Shaffer, 12 Cal.2d 168, 169, 82 P.2d 938.
Certainly, the theory of those cases is applicable here.
Both parties spend much time analyzing the many conflicting federal cases discussing the federal discovery procedures. The federal rule of discovery is different from that in California, and the federal cases are of little or no help in interpreting the California statute.
So far as the justice of compelling discovery under the facts here disclosed is concerned, we are impressed with the conclusion of the New York court in Bearor v. Kapple, Sup., 24 N.Y.S.2d 655, 658 to the effect:
'It shocks the conscience, and belittles intelligence and reason where a skillful paid agent, uninvited, can enter the home of a sick person injured in an automobile accident or otherwise, and by one ruse or another obtain the signature of the injured [296 P.2d 100] person to a statement in writing prepared by the agent, and then depart without so much as even leaving with the sick person a copy of this important writing. * * *
'There is no sound reason why plaintiff should not have a copy of the written statement he signed. His attorney should not be left in the dark. A lawsuit is not a game of wits.'
Let the writ of mandate issue as prayed.
BRAY and FRED B. WOOD, JJ., concur.