Opinion
Two defendants in a personal injury action challenge a court order requiring disclosure of statements they made to an insurance claims representative. They contend that thеse statements are covered by the attorney-client privilege because they were made in contemplation of litigation and were directed to an agent of their attorney. They discount the fact that when the statements were given litigation had not yet begun and no attorney had been assigned to handle the case. Applying the teachings of
Gene Compton's Corp.
v.
Superior Court
(1962)
These proceedings arise out of a two-car accident in San Francisco on April 19, 1987. Real party in interest was an occupant of a car driven by his grandson. Petitioner Mariam Soltаni-Rastegar was the driver of a car owned by petitioner Paul Craib. Mr. Craib’s car was insured by California State Automobile Association Inter-Insurance Bureau (CSAA). Within a *426 month of the accident, Mr. Crаib spoke with a CSAA claims representative over the phone and in person. He made no report in writing. On August 24, 1987, Ms. Soltani-Rastegar gave a written statement to CSAA claims representativе Jennifer Anderson, who had primary responsibility for adjusting any claim brought by real party.
On April 13, 1988, real party filed his action against Ms. Soltani-Rastegar, Mr. Craib, and others. During discovery, he learned abоut Ms. Soltani-Rastegar’s written statement and that Ms. Anderson had taken notes about Mr. Craib’s statements to her. Over petitioners’ objections based upon the attorney-client privilege, the court ordered production of both Ms. Soltani-Rastegar’s statement and Ms. Anderson’s notes. The court concluded that petitioners had not “established the existence of an attornеy-client relationship that would justify the assertion of such privilege” as to those items. This petition followed.
With certain exceptions not applicable here, a client “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” (Evid. Code, § 954.) “The party claiming privilege сarries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.”
(D. I. Chadbourne, Inc.
v.
Superior Court
(1964)
In opposing the discovery request, petitioners submitted declarations explaining that their statements were made in confidence to CSAA agents “for the sole purpose of defending” them against claims brought by those involved in the accident. The declarations further asserted that on May 23, 1988, the statements were delivered along with the CSAA file to petitioners’ present attorney, who has kept them since then.
Real party in interest argued below that petitioners did not meet their burden of showing that the attorney-client relationship covered these communications because both statements were made long before the lawsuit was filed and before CSAA had retained an attorney to represent petitioners. He repeats that argument in this court, with some elaboration.
Gene Compton’s
and
Travelers
demonstrate the weakness of real party’s argument. In
Gene Compton’s,
the trial court ordered disclosure of statements made by employees who had witnessed plaintiff’s fall on a stairway of the defendant’s premises. The statements had been sent to the insurance company shortly after the accident and some eight or nine months before litigation was commenced and before an attorney was selected to represent the defendant. The
Gene Compton’s
court reversed the disclosure ruling,
*427
concluding that the transmission of privileged communications to the attorney through the agency of an insurance carrier did not destroy the privilege.
(Gene Compton’s Corp.
v.
Superior Court, supra,
D. I. Chadbourne, Inc.
v.
Superior Court, supra,
60 Cal.2d at pages 730-731, cast doubt upon the
Gene Compton’s
decision when it disapproved
Gene Compton’s
failure to distinguish properly questions of law from questions оf fact. But
Travelers
has completely rehabilitated much of the
Gene Compton’s
opinion, including the part that applies here. As explained by
Travelers, “Chadbourne . . .
left intact
Gene Compton’s
approval of the holding in
Heffron [Heffron
v.
Los Angeles Transit Lines
(1959)
Real party contends that the “dominant purpose” test should be applied to the communications and that the dominаnt purpose of these communications to the claims agent was to settle the claim, not to assist the as-yetundesignated attorney. But application of the “dominant purpоse” test, as explained in
Holm
v.
Superior Court
(1954)
But
Holm
itself found the privilege applicable to reports and photographs originated with agents of the defendant and forwarded in confidence to the defendants’ attorneys for use in “possible litigation.”
(Holm
v.
Superior Court, supra,
It follows from Holm that the statements given to CSAA after the accident here, “for the sole purpose of dеfending” against claims, are protected by the attorney-client privilege. The fact that litigation was only a threat on the horizon and that attorneys had not yet been selected to try to avert or meet that threat does not convert the purpose of the transmission. To hold otherwise might merely encourage insurance companies to bring in their attorneys at early stages in the claims handling and might discourage early settlement of claims.
Real party speculates that perhaps the privilege here was waived because thе statements passed through too many insurance company hands on the way to the attorneys. But they cite no evidence of this, and they present no authority to support the view that a privilege is waived when more than one agent of the attorney or of the party handles the communication. We reject this waiver argument.
We also decline real pаrty’s suggestion that we deny the petition on procedural grounds. Real party contends that the record presented to this court is inadequate
(Sherwood
v.
Superior Court
(1979)
Furthermore, the verificаtion is not merely upon information and belief. Conforming with the directions from Code of Civil Procedure section 446, declarant states that the petition is “true and correct” of his own knowledge except as to those matters stated on information and belief and that declarant believes those matters to be true and correct. (Contrast
Star Motor Imports, Inc.
v.
Superior Court
(1979)
We issue a peremptory writ of mandate in the first instance. Such а procedure is proper, as we have advised real party in interest that we might so act. (Code Civ. Proc., § 1088;
Palma
v.
U.S. Industrial Fasteners, Inc.
(1984)
Let a peremptory writ of mandate issue directing the Superior Court of the City and County of San Francisco to vacate its order requiring disclosure and to enter a new order denying real party’s request. In response to real party’s repeated urgings that we act quickly, and pursuant to rule 24(d), California Rules of Court, this decision is made final forthwith in this court. Upon the finality of this decision, the stay of trial issued December 29, 1988, will dissolve.
White, P. J., and Merrill, J., concurred.