*1
proceeding in
THE
This isa mandamus
which
COURT.
appeal
on
in consolidated actions reviewed
judgments
801], are at-
Johnson, ante, p. 399
Pickens v.
Inas-
grounds urged
appeal.
on
on one of the
tacked
рetition for
disposes
issue,
appeal
as the
much
(See
and the alternative writ
writ
is denied
Bridge
[S. THE SUPERIOR Petitioner, v. CARROLL, FRANCIS OF SAN AND COUNTY THE CITY COURT OF PRESLEY, E. Respondent; DONALD FRANCISCO, Party Real in Interest. Weigel for Petitioner. Stanley A. Weigel &
Lаndels Respondent. appearance for No Interest. Party in Garrett, for Real Jr., Dan L. a writ The petitionerseeks SHENK, J. enforcing order from respondent court restrain possession. certain inspection of was issued. Presley v. entitled in an action order was made Pacific court. Greyhound Lines, pending now allegedly suffered damages recover seeks to plaintiff therein riding on the defend- injuries received while by him alleged negligence and caused bus plaintiff in that action Before trial the bus. operating of Civil Procedure 1000 of the Code under section moved copy photographs inspect him to permitting an order and its control of defendant possession present petitiоner. Carroll, Francis respective parties. were filed in behalf of the Affidavits by his made plaintiff of thе on behalf The affidavit attorneys have defendant and its It avers that the counsel. depict- of the accident possession the scene following Greyhound ing Bus the “condition the said accident, debris, condition marks, the said skid *2 and highway following and other material said accident accident.” relеvant as to the occurrence of said It states opposition in to the motion was also filеd. affidavit by agents of photographs that the taken the defendant were attorneys for and purpose delivering the of them to attorneys enable were in to the to fact taken and delivered that prepare them to a defense the action. It is insisted privilege attorney the of to thе informa- and client attaches tion photographic contained in the evidence. inspеction. the and ordered motion granted the The court comply refused to have petitioner and the The for punishment with threatened are the order and
with the trial court to restrain petitionеr seeks contempt. The of its order enforcement proceeding with the prohibition. of for the writ application substantially the case are presented in this questions The Holm, v. case of сompanion as those involved same 722], 1025, 268 P.2d ante, p. 500 Superior Court, right to assert the that where It was thеre held day filed. to de- discovery be used cannot bill is clear the privilege the em- corpоrate between is a communication that where it; feat re- for photographic evidence is embodied ployees and if privilege attaches attorney, the delivery corporate to a communicating a means created as were photographs the where the dоminant and that to the information attorney to an information transmission purpose is the that there are it immaterial capacity is professional privilege. to the not entitled purposes incidental other no conflict peti- there is with the present In the case showing photographs that were taken affidavit tioner’s purpose being express transmitted to the defend- attorneys litigatiоn. used in the threatened be purpose petition for the writ of reasserts such a respondent parties court nor the real neither the answered it. The facts before the trial interest have сourt photo- transmittal of required a determination that the attorneys purposes litigation was graphs to the purpose. not if the sole To this was the dominant privilege an abuse of in such circumstances was discretion. prayed. issue as peremptory
Let writ is J., Schauer, Spence, J.,
Gibson, J., Edmonds, J., C. concurred. judgment ground on the
TRAYNOR, J. I concur petitioner’s allegation that the were taken transmitting him express purpose of them tо for the parties court or the real disputed either the in interest.
CARTER, J. I dissent. agree that the privileged would be if taken purpose for the of transmittal to defendant’s counsel for use in litigation, pointеd but as I my out in dissent in Holm Superior Court, ante, p. 722], proof burden on that issue upon defendant, rested privilеge. justified claimant of the The trial court con *3 as it did, that that burden had not been cluding, sustained suppliеd because it could disbelieve the affidavits though judge required even “A uneontradicted. trial acсept true testimony as the sworn witness, of a even in directly contradicting the absence it, apрlies (Lohman Lohmam, rule to an affidavit.” v. 29 Cal. 657]; see, 2d also, other cases cited Superior supra.) Holm Court, especially ap The rule is plicable case since the affidavit is one hardly attorneys, position majority a to be unbiased. The opinion, however, credibility determines the affidavit contrary court, usurping power. trial thus would therefore writ.