Summary
hearing granted by Supreme Court
Summary of this case from State Farm Mutual Auto. Ins. Co. v. Superior Court (City and County of San Francisco)Opinion
Hearing Granted Jan. 4, 1961.
Opinion vacated 15 Cal.Rptr. 116.
Crowley & Rhoden, Hollywood, for petitioner.
Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel, and Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondent.
Sheppard, Mullin, Richter & Hampton, Trippet, Yoakum & Ballantyne and William A. Masterson, and O'Melveny & Myers, Los Angeles, for real parties in interest.
NOURSE, Justice pro tem.
Petitioner seeks a writ of mandate to compel the respondent court to vacate an order denying his motion made pursuant to section 2031 of the Code of Civil Procedure, for an inspection of the reporter's transcripts of the testimony given upon deposition by one Jamieson, one Thornton, and one Ash, in an action to which petitioner was not a party. By the motion he further sought to inspect the shorthand notes of one of the reporters who took down in shorthand a part of the testimony contained in said transcripts.
The motion was made by petitioner in an action commenced by him in respondent court against said Thornton, Ash and Jamieson, Electro Dynamics Stock Trust Fund, a partnership of which the three individual defendants above named were the partners, and Litton Industries, Inc., a corporation, hereinafter designated the 'Steele action.'
Ten causes of action are set forth in the complaint filed by petitioner. By the first Prior to the commencement of the subject action by petitioner, Jamieson had instituted an action against Thornton and Ash. His amended complaint contained seven causes of action. By his first two causes of action he sought dissolution of the partnership of Electro Dynamics Stock Trust Fund and for an accounting. By the third cause of action he sought partition of the partnership assets upon the theory that they were held by him, Thornton and Ash as tenants in common. By the fourth and fifth causes of action he sought damages for breach of a fiduciary duty owing him as a partner by the alleged imposition of restrictions upon the use of the partnership assets. By the sixth cause of action he sought the same relief as in the fifth but on the theory that he was a cotenant with Thornton and Ash. By the seventh cause of action he sought the removal of certain repurchase restrictions placed upon shares of the stock of Litton Industries sold to him by the partnership. Neither the corporation nor petitioner were parties to said action, which will be hereinafter designated as the 'Jamieson action.'
During the progress of the Jamieson action the depositions of each of the parties was taken by their adversary. The reporter and notary before whom part of these depositions was taken was one Quail. After the commencement of the Steele action the controversies involved in the Jamieson litigation were settled and the action dismissed with prejudice. Upon the dismissal of the action all transcripts of the testimony given by the deponents at the deposition above mentioned were placed in the hands of the attorneys for Thornton and Ash. These depositions were not corrected or subscribed to by the respective deponents. Petitioner then requested that Quail furnish him with copies of his transcription of the notes taken by him of the testimony given by Jamieson, thornton and Ash. Quail refused so to do and upon the request of the attorneys for Thornton and Ash delivered his notes to them.
Steele's request to be permitted to inspect and take copies of the transcripts of the testimony of the aforesaid deponents having been refused he filed his notice of motion, the ruling upon which is in question here. His motion is based upon the file in the Jamieson action and upon the declaration of petitioner and two other persons in which one or more of the persons making the declaration declared that Whether petitioner is entitled as a matter of right to the order sought here depends upon whether the facts shown by the evidence produced by him in support of his motion established that the search of papers of real parties in interest by an inspection of the transcripts in question would be a reasonable search and not one in violation of the constitutional rights of real parties in interest 'to be secure in their * * *, papers, * * * against unreasonable seizures and searches.' Cal.Const., art. I, § 19. Before one party to an action may inspect and take copies of papers or documents in the possession of the other party, he must 'show clearly that he has a right thereto and that the constitutional guaranties' of the other party 'will not be infringed.' To do so he must produce evidence which (1) identifies the paper, (2) clearly shows that they contain evidence material to the issues and (3) that it is admissible in evidence. McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 396-398, 159 P.2d 944; Adams v. Superior Court, 49 Cal.2d 427, 432-433, 317 P.2d 983; Twin Lock, Inc. v. Superior Court, 171 Cal.App.2d 236, 340 P.2d 748.
In McClatchy Newspapers v. Superior Court, supra, the Supreme Court speaking through Mr. Chief Justice Gibson said (26 Cal.2d at pages 396, 397, 159 P.2d at page 950):
'The right to have an inspection of papers and documents in the hands of a party to the action or a third person is governed by different rules from those applying to depositions. A party or witness has a constitutional right to be free from unreasonable searches and seizures, and it is therefore incumbent upon the one seeking an inspection to show clearly that he has a right thereto and that the constitutional guaranties will not be infringed. Hence, the affidavit in support of the demand for inspection must identify the desired books, papers and documents and it must clearly show that they contain competent and admissible evidence which is material to the issues to be tried. The affiant cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material. * * * In the present case the defendant has not brought itself within the rule for it has not alleged sufficient facts to show the materiality of the desired evidence.' (Emphasis added.)
It is not enough that the evidence produced raise a suspicion that the paper or document sought contains material evidence, there must be an affirmative and substantial showing that they do contain material evidence as to a cause of action or defense asserted by a party to the action. Adams v. Superior Court, supra, 49 Cal.2d at page 433, 317 P.2d at page 986.
The showing made by petitioner here falls far short of showing that the order he seeks would not invade the constitutional rights of the real parties in interest, Jamieson, Thornton and Ash.
While petitioner has identified the papers he desires to examine he has utterly failed to show that they contain evidence which would tend to prove or disprove any fact material to any of the causes of action asserted by him or to any potential defense that might be asserted thereto. In short, he We have heretofore pointed out that the evidence upon which petitioner relied before the respondent court consisted of the entire file in the Jamieson action and we have thoroughly examined the file of the respondent court in the Jamieson action. We find nothing in the file which would constitute any evidence whatsoever that the transcripts which petitioner seeks to inspect contained material evidence bearing upon any matter, the existence or nonexistence of which is provable in the Steele action. The only possible connection between the subject matter of the Jamieson action and the subject matter of the Steel action as disclosed by the Jamieson file, viewed in the light of the Steele file, is the fact that in both actions stock of Litton Industries (which was a part of the assets of the partnership) was involved and that if Steele is successful the assets of the partnership to which Jamieson would be entitled upon the winding-up of the partnership would be depleted; and the fact that, in the first cause of action asserted by him in his amended complaint, he alleged that he had been forced to acquiesce in promises made by Thornton to third persons without authority but which purportedly bound the partnership.
The declarations offered by petitioner and upon which he relies show the following: that Jamieson told Steele that Thornton and Ash lied in their depositions that they gave in the Jamieson action, but there is no showing as to wherein they lied; that Thornton and Ash were inconsistent in their depositions but as to what matters the testimony of one differed with that of the other is not shown; that in the opinion of Jamieson the transcripts in question would be useful to Steele in the preparation of his own case, this obviously is but conclusion and not a statement of any fact; that Jamieson told Steele that he, Jamieson, had discovered during the deposition of Thornton and Ash, certain facts of breaches of contract by Thornton against Steele and breaches of fiduciary relations owing by Thornton to Steele, but the declarations entirely fail to show whether Steele discovered these facts from the testimony given by Thornton or Ash or whether he discovered them from independent sources but during the time the depositions of Thornton and Ash were being taken and in any event the declarations would amount to mere hearsay statements of the conclusions drawn by Jamieson from facts, but what those facts are, is not revealed. The other matters stated by the declarants have no bearing whatsoever upon the question as to what evidence might be contained in the papers the inspection of which is sought.
The declarations of attorneys for the real parties in interest filed in opposition to the motion, upon which declarations petitioner also relies, show that the depositions of Jamieson, Thornton and Ash were taken for the purpose of not only prosecuting or defending the Jamieson action but for the further purpose of preparing to resist the claim of Steele which they had been advised he intended to assert.
The most that can be said for the entire factual showing made by petitioner in support of his motion is that one might suspect that at some point in the testimony of one or more of the deponents, reference was made to some dealings between Thornton and Steele but this falls far short of a clear showing that such testimony was given.
Not only has petitioner failed to show that the papers contain material evidence, but he has failed to show that the papers would be admissible in evidence to prove the truth of the matters stated therein if offered either by him or by his adversaries. As we have pointed out, the transcripts of the testimony were not corrected or subscribed to. They amounted to merely a statement of a typist saying what she heard the reporter say he heard the witness say. They are clearly hearsay Petitioner draws our attention to the provisions of section 2019(e), Code of Civil Procedure, providing in substance that if a witness refuses to sign the transcript of the testimony taken at his deposition, the officer taking the deposition shall sign it and the deposition may then be used as fully as though signed. That section has no bearing upon the problem here for that code section was designed to make the deposition admissible as evidence in the action in which the deposition was taken and not designed to make it available for use in another action as a signed deposition containing admissions against interest or for use in that other action to show by way of impeachment prior inconsistent statements of the witness. Further, there is no showing made that the depositions in question were even submitted to the witnesses for signature or that they refused to sign them. To the contrary, it appears without contradiction that the depositions were not completed and that the taking of them was abandoned upon the dismissal of the Jamieson action. They remain, therefore, purely the hearsay statements of the person who typed them. What we have said as to the transcripts of the testimony given by the deponents applies with equal force to the notes of the reporter.
It is petitioner's contention that under the provisions of sections 2031 and 2016 of the Code of Civil Procedure, it is no longer necessary in order for a party to procure inspection of a paper in the possession of his adversary, to show that the paper does contain evidence material to an issue in the action or to show that the paper would be admissible in evidence in the action, but only necessary for him to show that it may contain something relevant to the subject matter of the action which might lead him to the discovery of admissible evidence. In other words, it is his contention that the right given him for the inspection of documents by section 2031 of the Code of Civil Procedure, is as broad as his right of examination of a deponent under the provisions of section 2016.
The statutes in question are not subject to the interpretation that petitioner would place upon them. These statutes are to be liberally construed to accomplish their purpose of furthering efficient, economical disposition of cases according to right and justice on the merits (Pettie v. Superior Court, 178 Cal.App.2d 680, 3 Cal.Rptr. 267) but they should not, if any other reasonable interpretation can be placed upon them, be interpreted as providing for an unreasonable search of the private papers of a party to an action. City of Los Angeles v. Belridge Oil Co., 42 Cal.2d 823, 832, 271 P.2d 5; People v. Globe Grain & Milling Co., 211 Cal. 121, 127, 294 P. 3.
Section 2031, Code of Civil Procedure, does not create an unqualified right of one party to inspect the private papers of his adversary. It requires a showing of good cause for such an inspection. As we have pointed out the Supreme Court, prior to the enactment of the section, clearly delineated the showing necessary to establish the reasonableness of the search; in other words, the Supreme Court defined The requirement of a showing of good cause in nowise deprives the party of his right to obtain documents constituting material evidence which are in the possession of his adversary for under the provisions of section 2016, Code of Civil Procedure, he may examine any person including a party adversary as to the existence, description, nature, custody, condition and location of any paper even though the testimony of that witness would be inadmissible at the trial if it appears reasonably calculated to lead to the discovery of admissible evidence.
Thus, one party to an action may through depositions of the opposing party or others, procure evidence to establish those facts which are essential for him to prove in order that he may inspect the document in the possession of his adversary. The testimony of the deponent given on his deposition may not be admissible in evidence at the trial but the existence, description and nature of the paper is a matter connected with the subject matter of the action and the testimony of deponent may be used to establish the matters that are essential to an inspection of the document, i. e., the existence of the document, its possession by the opposing party, the nature of its content, i. e., the materiality of its content and its admissible character.
It is apparent from the reading of sections 2016 and 2031, that it was the intent of the Legislature to permit a wide scope of examination in order that a party might discover whether his adversary was in possession of papers containing evidence material to either party's case and which was admissible in evidence, but not the intent to permit inspection of a document and by such inspection ascertain whether it contains material evidence and whether it is admissible. Yet that is what petitioner sought in the court below. Petitioner there sought to examine transcripts of testimony which certainly must have been largely devoted to matters that were of no concern to petitioner in order to ascertain whether some portion thereof dealt with the subject matter of his own action. To uphold such a procedure would be to erode and leave with little or no effect, insofar as civil actions are concerned, the prohibition against unreasonable searches set forth in our Constitution. We may point out that the procedure provided for by the statutes in question, as we interpret them, is the same as that indicated as the proper procedure in McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d 386, 159 P.2d 944.
In the present case, petitioner is free to examine any of the defendants having knowledge of the facts as to the subject matter of the depositions; he is free to examine the reporter or reporters on the same subject; he is free to examine the same persons to show, if he can, circumstances that would make either the notes of the reporter or the transcripts of the testimony admissible. He clearly has this right under section 2016 for neither the notes of the reporter nor the transcripts are privileged communications. They were taken in an adversary proceeding and cannot be classified, as the real parties in interest contend, as privileged communications between attorneys and clients merely because, at the time they were taken, the parties who were adversaries in the Jamieson action contemplated that they might in the future, be 'bedfellows' in an action brought by Steele, and agreed to keep them secret. They are not to be classified as the work product of the attorneys who took the depositions, merely because at the time they were taken in the Jamieson action those attorneys were faced with the fact that they might be called upon to defend a different action which they have here vociferously contended involves entirely different facts and subject matter than the action in which the depositions were taken. We are not here called upon to decide the question as to whether the respondent court may in its discretion, compel the production of portions of the transcripts in question if, upon the taking of the depositions of the real parties in interest or the reporter, it appears that upon the taking of their depositions in the Jamieson action they testified to matters relevant to the issues in the Steele action. Whether the necessity of using the transcripts in order to properly examine the deponents would make the search provided for by the order for inspection a reasonable one can only be decided when a showing of that necessity is made and that can only be made upon a showing that the testimony as set forth in the transcript does deal with matters relevant to the Steele action.
The alternative writ heretofore issued is discharged and the peremptory writ denied.
FOX, P. J., and ASHBURN, J., concur.