Opinion
Rehearing Denied Aug. 20, 1930
Hearing Granted by Supreme Court Sept. 25, 1930
Writ of Review to Superior Court, Fresno County; S.L. Strother, Judge.
Application for certiorari by the Kutner Goldstein Company and others against the Superior Court of the State of California in and for the County of Fresno and others, to review an order of said court directing an examination to perpetuate testimony.
Order annulled. COUNSEL
Leon Morris and Chickering & Gregory, all of San Francisco, for petitioners.
Joseph E. Bien and Werner Olds, both of San Francisco, for respondents.
OPINION
AMES, Justice pro tem.
Respondent Abe L. Kutner herein presented to a judge of the superior court of Fresno county his verified petition praying for an order allowing the examination of Maurice Penny and L.A. Rummelsberg, both of the city of Fresno, for the purpose of perpetuating their testimony in certain expected litigation in which, it was alleged, Louis Kutner, Alfred Kutner, and Kutner Goldstein Company are the persons whom applicant in the court below expects to be adverse parties.
Pursuant to the prayer of said petition, the judge to whom it was presented made an order purporting to authorize the testimony of such persons to be taken before a commissioner appointed for that purpose and directing that notice of the time and place of the taking of such testimony be given to petitioners here. The petitioners in this court attack the sufficiency of the petition and contend that it does not disclose "what the nature of the contemplated action is to be." And, for that reason, they contend, the order should be annulled. The form of the application to be made to the superior court is prescribed by subdivisions 1, 2, and 3 of section 2084 of the Code of Civil Procedure, as follows:
"The applicant must produce to a judge of the superior court a petition, verified by the oath of the applicant, stating:
"1. That the applicant expects to be a party to an action in a court in this state, and, in such case, the names of the persons whom he expects will be adverse parties; or,
"2. That the proof of some fact is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no suit may at the time be anticipated, or, if anticipated, he may not know the parties to such suit; and,
"3. The name of the witness to be examined, his place of residence and a general outline of the facts expected to be proved."
It will be noted that subdivisions 1 and 2 provide for two alternative situations. The application in the court below was filed pursuant to subdivision 1 of said section. It appears from said application that Kutner Goldstein Company is a corporation. A general outline of the facts, which applicant expects to prove by witness Maurice A. Penny, as disclosed by the application, is substantially as follows:
That for many years said Penny had been employed by Kutner Goldstein Company as financial man, general accountant, bookkeeper, and manager, and for a portion of such time had been a director of the corporation; that he is fully conversant as to its affairs; that said Kutner Goldstein Company had, during said time, various and sundry unlawful transactions with Alfred Kutner and Louis Kutner, by which the last-named persons came into possession of portions of the capital stock and assets of the corporation while they were acting as officers and directors of said corporation and in control of the board of directors and of all of the affairs and activities thereof. That said Alfred Kutner and Louis Kutner, during said period, unlawfully obtained for themselves large sums of money and property from said corporation and borrowed large sums of money therefrom and caused many entries to be made in its books regarding said loans; that during said period Kutner Goldstein Company loaned to said Kutner and Founders’ Investment Company large sums of money and borrowed from Adolph Kutner Company and the Founders’ Investment Company large sums of money, and that said three corporations had many unlawful interlocking transactions and dealings together, including the transfer of assets and the stock of the Kutner Goldstein Company to Alfred Kutner and Louis Kutner and the unlawful obtaining of assets of said corporation by them. That said Penny had, during said period, as accountant, bookkeeper, financial man, and manager of said corporation followed the directions of and took instructions from said Alfred Kutner and Louis Kutner, which directions and instructions were in the interests of said Alfred Kutner and Louis Kutner and against the interests of said corporation. That the books and records of said corporation are not accessible to applicants, but under the control of said Penny, who has refused to produce the books and records of the corporation for examination of applicants during a portion of said period. That the annual inventories of said corporation were taken under the direction of said Alfred Kutner and Louis Kutner at prices fixed and determined by them. That large salaries were paid to said Alfred Kutner and Louis Kutner and said Penny and large cash reserve and surplus accounts created, all of which were under the direction and control of said Alfred Kutner and Louis Kutner. That annual statements made by Kutner Goldstein Company did not correctly state the condition of affairs of said corporation, and did not correspond with the entries in its books; the said Alfred Kutner and Louis Kutner having represented that said statements were made for the information of stockholders, knowing that the same did not reflect the true condition of the corporation. That said Kutners had caused the board of directors of said corporation to place a value upon its stock which was less than the actual value thereof for the purpose of enabling said Kutners to deal with its stock upon a basis of less than its true value. That he took part in the adjustment of certain fire losses and in the entries thereof on the books of said corporation. That various transactions were had between the said Kutners and the corporation, by which the former obtained for themselves certain shares of stock in other corporations, and unlawfully obtained money and funds from the Kutner Goldstein corporation for that purpose, and that financial statements for the purpose, of obtaining credit with banks and other concerns were prepared under the direction of said Kutners and were at variance with and contrary to the annual statements submitted to the stockholders.
That the general outline of facts expected to be proved by witness Rummelsberg is briefly as follows: That he had acted as bookkeeper and submanager of Kutner Goldstein Company for many years. That he knows the whereabouts of all the books of said corporation up to 1930, that the annual statements contained in said books were made under the direction of the said Kutners and were prepared and submitted to the stockholders and did not reflect the true condition of said corporation, and that the prices fixed in the inventories prepared for said corporation were prepared under the direction of said Kutners and did not reflect the true value of the merchandise and assets of said corporation.
It does not appear from the application filed in the court below what interest, if any, applicant had in the evidence which he expects to elicit from the prospective witnesses. Whether or not he is or ever had been a stockholder or creditor of Kutner Goldstein Company or any of the concerns with which it had had "interlocking transactions or dealings" is not disclosed by the application, and while it appears that litigation is anticipated in which Louis Kutner, Alfred Kutner, and Kutner Goldstein Company, a corporation are expected to be adverse parties, we are left to speculate as to whether or not said action arose or will arise from a tort, a contractual relation or some other relationship which may have existed between them.
It must be admitted that if the literal and exact language of subdivisions 1 and 3 of section 2084 of the Code of Civil Procedure is adopted and taken as controlling, the petition to perpetuate testimony contains all of the material allegations required. We believe, however, that to put such a construction on the section would violate the provisions of section 19 of article 1 of the Constitution of California, which protects the people of the state and their persons, houses, papers, and effects against unreasonable seizures and searches.
The word "effects" has been construed to mean personal property in its general and accepted sense and meaning. Castle v. Castle (C.C.A.) 267 F. 521; Brotherhood of Railroad Trainmen v. Williams, 211 Ky. 638, 277 S.W. 500; Linn v. Davis, 223 Ill.App. 503; Lee v. Moore, 37 Ga.App. 279, 139 S.E. 922. Personal property "includes all kinds of property which do not come within the statutory definition of real property. *** The term includes within its scope money, goods, chattels, things in action, evidences of debt, ships, products of the mind, trademarks, the goodwill of a business, title deeds, and certificates of stock." 20 Cal.Jur. 1046, and citations. Lists of customers and trade secrets have been held to be property the right to which will be protected by the courts. New Method Laundry Co. v. MacCann, 174 Cal. 26, 161 P. 990, Ann.Cas.1918C, 1022.
The case of Irving v. Superior Court, 79 Cal.App. 361, 249 P. 236, 237, involved the question as to whether or not the nature of the expected action should be set forth in the petition for the perpetuation of testimony. The application in that case, as in this failed to disclose the nature of any transactions which the applicant had had with the persons whose books it was proposed to examine under a subpoena duces tecum. The court in that case says: "The right of the people to be secure against unreasonable or unnecessary seizure of their private papers and documents is justly regarded as a highly sacred one— so much so, in fact, that the people themselves have taken the pains in express written terms to guarantee and safeguard its perfect enjoyment. Const.art. 1, § 19. In no case, therefore, should a person be forced to surrender his private books and papers to another who does not claim to own or have any interest in them except upon convincing proof that such books or papers contain evidence which materially affects the rights in litigation of the person demanding them."
In the case of Ex parte Clarke, 126 Cal. 235, 58 P. 546, 547, 46 L.R.A. 835, 77 Am.St.Rep. 176, which is quoted with approval in Irving v. Superior Court, supra, the petitioner was ordered by the superior court before which he was a witness, to produce in court all of the books and records of the corporation by which he was employed, no evidence having been offered nor introduced, nor any showing made in said action that any of such books were material or pertinent to any of the issues in said action, and having been imprisoned for contempt for his refusal to comply with said order of the superior court, sued out a writ of habeas corpus from the Supreme Court, and in its opinion the court says: "The question here presented is of great importance to all citizens, for it involves the constitutional right of the people to ‘be secure in their persons, houses, papers and effects against unreasonable seizures and searches.’ State Const. art. 1, § 19. To compel a person to deliver his books and papers to another who does not claim any ownership in them is to violate the sanctity of most important private rights, and is not to be tolerated except when warranted by some law clearly not inconsistent with the constitutional provision. *** The privacy of private books and papers is not only of inestimable value to the owner on account of various personal and sentimental reasons, but is of the greatest value also from mere business considerations. The exposure of a man’s methods of business would frequently be highly injurious to him, and, although really solvent, might produce such embarrassments as would ruin him. His right, therefore, to the sole possession and knowledge of his private books and papers is not to be violated except where the power to do so clearly appears."
To the same effect are Kullman Salz & Co. v. Superior Court, 15 Cal.App. 276, 114 P. 589, and Funkenstein v. Superior Court, 23 Cal.App. 663, 139 P. 101.
The respondent here contends that the foregoing cases are not in point for the reason that no subpoena duces tecum for the production of the books and records of the Kutner Goldstein Company had been issued, and while it is true that if the books and records are not to be produced at the time of the examination of the witnesses, the petitioner in the court below evidently expects to prove their contents by parol. Parol testimony is never admissible to prove the contents of writing unless the writings cannot be produced. If the books and records cannot be examined on this proceeding to perpetuate testimony as respondents seem to admit, their contents should not be proved by parol. A party should not be permitted to prove by incompetent testimony and indirection that which he cannot establish by competent testimony and direction.
If the allegations of the petition to perpetuate testimony which we are considering should be held sufficient, a business man who had the most trivial cause of action against a rival for damages resulting from a motor vehicle accident could, by filing a similar petition stating that he expected to be a party to an action in any court in California in which his business rival would be an adverse party, take the testimony of the most trusted and confidential employees and probe into the most valuable trade secrets and business procedure of the rival. Counsel for respondents suggests that unless the testimony elicited on the proceeding to perpetuate testimony prove competent in the action when filed, it will not be admitted in evidence at the trial, under the provisions of section 2088 of the Code of Civil Procedure and that the time to make the objection is at the trial when the evidence is offered and not in this proceeding before this court. The damage would be done at the time of the first examination of the witnesses and not at the time of the offer of the evidence at the trial. A secret which is published is no longer a secret. Many trade secrets would lose all their value as soon as published. We do not believe the petition filed in the court below sufficient to satisfy the requirements of the constitutional prohibitions when we read section 2084 of the Code of Civil Procedure with section 19 of article 1 of the Constitution in mind. The testimony sought should be germane to the issues involved in the action to be filed and this should appear from the petition to perpetuate the testimony.
Petitioner relies upon the case of Doyle v. Superior Court (Cal.App.) 280 P. 992, and contends that it is controlling in the instant case. But in that case it appeared that the action would involve the determination of the validity of a certain agreement between the city of Long Beach and a contractor under which the latter was employed to do certain construction work in a local assessment district in said city; that petitioner was the owner of certain real property within such district and proposed to determine the validity of all bonds issued in connection therewith and that his property had become subject to an assessment, the validity of which he expected to attack in such litigation in order to perfect the title of the property which had been subjected thereto. It therefore appeared that petitioner had a direct and immediate interest in the subject-matter to be involved in the proposed litigation and the court properly held that the petition was sufficient.
The question next presented is whether the provisions of chapter 2, title 6, part 4, of the Code of Civil Procedure (sections 2083-2089) are constitutional. It is an undisputed and general rule supported by an unwavering line of decisions that all presumptions are in favor of the constitutionality of statutes and that the courts will not hold a statute unconstitutional unless such action is clearly required. MacMillan Co. v. Clarke, 184 Cal. 491, 194 P. 1030, 17 A.L.R. 288. "The courts must always assume that the Legislature in enacting laws intended to act within its lawful powers, and not to violate the restrictions placed upon it by the Constitution." In re Miller, 162 Cal. 687, 124 P. 427, 429. The courts will not presume that the Legislature intended to pass an unconstitutional statute or do anything beyond its powers. Hansen v. Vallejo Electric Light & Power Company, 182 Cal. 492, 188 P. 999. It has also been held that in considering the constitutionality of an act it must be presumed that the Legislature discussed and had in mind the constitutional provisions in passing it. Beach v. Von Detten, 139 Cal. 462, 73 P. 187. We may presume, therefore, that when the Legislature passed section 2084 of the Code of Civil Procedure, it had the provisions of section 19, article 1, of the Constitution in mind and intended its enactment to be constitutional. With these rules in mind it is not necessary to hold the Code section unconstitutional, but merely to construe it under, and in connection with, the constitutional provisions. When the Legislature provided that in the petition to perpetuate testimony, the petitioner must set forth "a general outline of the facts expected to be proved," it had the constitutional provisions against unlawful search and seizure in mind and intended the "general outline of the facts" to be sufficiently extensive to show the nature of the expected action between the parties and that the testimony sought would be competent, relevant, and material to such an anticipated cause of action. With the Constitution and Code sections thus construed together, we believe the Code sections constitutional. The petition to perpetuate testimony filed in the court below falls far short of these requirements.
The order to take testimony is annulled.
MARKS, J.
I concur in the foregoing opinion of Mr. Justice pro tem AMES. It is admitted in the briefs before us that the books and records of the Kutner Goldstein Company, the contents of which the respondent Abe L. Kutner, seeks to prove by parol on the proceeding to perpetuate testimony, are in existence and subject to examination.
I do not construe the opinion as holding that the expected action must be based upon a valid and enforceable cause of action. To so hold would require the trial of the issues of the main cause upon the proceeding to perpetuate testimony which, in my opinion, is not necessary. I do believe that the testimony sought to be perpetuated should be connected with the subject of the expected litigation. In other words, if Abe L. Kutner expected to be sued for damages resulting from a motor vehicle accident he should not be permitted to delve into the books and records of the Kutner Goldstein Company to attempt to prove a fraud in which he is in no wise interested and which is none of his concern as far as the record before us shows. If Abe L. Kutner expects to be defendant in an action, that fact alone makes him interested in the threatened litigation regardless of whether or not his expected adversaries have an enforceable cause of action against him. This should give him the right to perpetuate the testimony of a witness if such testimony be shown to be material to the expected or feared litigation. In my opinion, if any other conclusion were reached it would be necessary to hold section 2084 of the Code of Civil Procedure unconstitutional as violating the provisions of section 19 of article 1 of the Constitution.
CARY, P.J.
I dissent.
Section 4 of the Code of Civil Procedure provides:
"The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice."
In the case at bar, admittedly the literal requirements of section 2084 of the Code of Civil Procedure have been met in the application. The duty of the trial judge is thereupon prescribed as follows: "The judge to whom such petition is presented must make an order allowing the examination," etc. This language is mandatory. Now, to hold in the face of this situation and the admonition of section 4, above, not only that the judge was not compelled to issue an order allowing the examination, but that if he did so he acted without jurisdiction, requires, it seems to me, some very strong reasons. It is intimated in the decision that the failure of the application to show applicant’s interest in the subject-matter of the litigation is one of the reasons, and it is directly held that the failure of the application to show the nature of the expected action is, in itself, sufficient to deprive the court of jurisdiction to issue the order for the examination.
A comparison of the old equity practice with our present code provisions is interesting. Under the former, proceedings to perpetuate testimony were comparable to a modern lawsuit. The first step was the filing of a bill for that purpose. We find in 18 Corpus Juris. p. 627 et seq. that it was necessary to allege: (1) The reason for the perpetuation of the testimony; (2) complainant’s right, title, or interest in the matter to which the evidence relates; (3) that defendant claims some interest in the subject matter of the controversy; (4) the subject matter of the controversy; (5) the inability of a party seeking to perpetuate the testimony to bring action immediately regarding the matter involved; (6) the names of the witnesses; (7) the facts concerning which the examination is sought; and (8) the danger of the evidence being lost. An answer was then filed. Upon the issues thus made a hearing was had. Not until the court was satisfied that all the averments of the bill had been proved was the prayer for the perpetuation of testimony granted. Even then the examination was confined to interrogatories, the relevancy and materiality of which had already been passed upon by the court.
Under our Code procedure for the taking of depositions generally, an entirely different plan is provided. Where the witness is within the state the taking of depositions is ordinarily carried on from beginning to end by counsel without the intervention or even the knowledge of the court. The relevancy or materiality of the testimony taken is ordinarily challenged for the first time when that testimony is used in the trial of the action. Now of the eight requirements under the old equity procedure, but three are required by section 2084, namely, (1) the reason for the perpetuation of the testimony (that the applicant expects to be a party to an action), (2) the names of the witnesses to be examined and their places of residence, and (3) a general outline of the facts expected to be proved. The equity requirements (1) of a statement of the complainant’s interest in the matter to which the evidence relates, (2) that the defendant claims some interest in the subject-matter of the controversy, (3) the description of the subject-matter of the controversy, (4) the inability of the party to bring an immediate action concerning this subject-matter, and (5) the danger of the evidence being lost, are not included in the requirements of subdivision one of section 2084.
As is so often the case where code provisions simplify the previous procedure, we find in many of the cases where such proceedings for the perpetuation of testimony are being considered, that counsel for the person resisting the proceedings endeavors to show that the former requirements should be read into the new procedure. The courts have made short work of such contention, as shown in the following cases: In State ex rel. Holcomb v. District Court, etc., 54 Mont. 574, 172 P. 329, the court in construing a statute for the perpetuation of testimony identical with our own, says:
"Much discussion and citation of authority are offered to show that something more than the statute requires was necessary but what other courts may have said touching other statutes or in the effort to construe provisions similarly clear is not convincing. Rev.Codes, § 4." (This section 4, by the way, being identical with our own Civil Code Procedure, section 4, given above.)
Again while construing a statute different from ours, we find the following in Sioux Land Co. v. Ewing, 165 Wis. 40, 160 N.W. 1059 at pages 1060, 1061:
"It is further argued that, while section 4126, Stats., governing the taking of depositions without the state, provides that a commission shall issue upon the court being satisfied that there is sufficient cause for the taking thereof, and that there is no such requirement in the statute as to the taking of depositions within the state, therefore the ‘sufficient cause’ required under that statute must mean substantially that the same reasons must be shown to exist as were required under the old rules of practice in equitable proceedings to perpetuate testimony; the old practice being that no separate proceedings could be had to perpetuate testimony except upon a showing of some actual and substantial impediment to the then prosecution of an action in which such testimony would be material and could be taken. Evidently, however, the Legislature intended its new rules embodied in these statutes to take the place of the old practice, and we can find in the language of the statutes themselves no grounds for holding that it was intended that such a provision of the old rule should survive in the new."
And in our own state the courts have on two occasions expressed the same thought. Thus, in San Francisco Gas Co. v. Superior Court, 155 Cal. 30, 99 P. 359, 360, 17 Ann.Cas. 933, the court was considering under what circumstances a deposition de bene esse could be taken. We find therein the following:
"Among the most important rights of a litigant is that of securing the evidence by which the justice of his claim or defense may be established, and when there is but a single witness upon a material point, or the witnesses are old and infirm, or without the jurisdiction, the necessity of taking their depositions is apparent. It was therefore an important part of what has been called the auxiliary jurisdiction of courts of equity to provide for the perpetuation of testimony in view of anticipated litigation, as well as for the taking of depositions de bene esse in causes actually at issue. The proceeding in such cases was by bill, and involved the long and tedious procedure of a suit in equity. Relief also was cautiously administered, and the chancellors in later times hesitated to award a commission in a case for which an exact precedent could not be found, although it clearly appeared to fall within the principle upon which the jurisdiction was originally founded. Anonymous, 19 Vesey, Jr., 319-334 (Eng. Reprint, 536), and 1 Pomeroy’s Equity (3d Ed.) § 210 et seq.
"This was the situation when our Codes came to be enacted, and it very clearly appears that it was the intention of the Legislature, not only to provide a simple statutory proceeding by which litigants, actual or expectant, could secure all the relief formerly afforded by courts of equity, but even ampler relief, and upon easier terms." (Italics mine.)
And in Doyle v. Superior Court (Cal.App.) 280 P. 992, 994, where the court was construing the same provisions now before us, we find the following language:
"Although the petitioner in this proceeding has made a showing that under strict equity practice many things, other than those to which reference has heretofore been had herein, must appear in an application for an order to perpetuate the testimony of a witness, from a reading of section 2084 of the Code of Civil Procedure, it is apparent that its provisions offer a complete plan of procedure in the premises, and consequently that no occasion exists for ascertaining whether the application, as presented, complies either with the former equity practice or with the pertinent statutes, rules, or regulations concerning the subject which appertain to any jurisdiction outside this state."
The only case which I have been able to find contra is Irving v. Superior Court, 79 Cal.App. 361, 249 P. 236 , which is the chief case relied upon by the petitioner herein. That case, while admitting that the particularity of the former bills in equity is not required in the statutory proceeding to perpetuate testimony, then goes on to say, at page 364 of 79 Cal.App., 249 P. 236, 237:
"The nature of the anticipated controversy, the interest of the applicant, and the claims of adverse parties therein should be set forth in the application with sufficient certainty to enable the court to settle proposed interrogatories or to compel witnesses to answer questions propounded to them. It seems clear that this cannot be done unless the application states sufficient facts to enable the court to determine whether such interrogatories or questions are material to the controversy. ‘The bill should describe a subject of controversy so as to identify it, in order to enable the court *** to direct the interrogatories or specify the matter as to which the witnesses are to be examined; and the bill must of itself show some certain legal interest in the plaintiff.’ "
It will be observed that this language impliedly makes it necessary for the application to contain practically everything which the old equity practice required. Irving v. Superior Court presents an interesting study. We first find that the party seeking to perpetuate the testimony was not represented in the appellate court and therefore that court did not have the benefit of such argument as a respondent might have presented. An examination of the authorities cited in the opinion also discloses that the language we have quoted is to be found in 8 Ruling Case Law, at page 1148, and an examination of that authority shows that the author was dealing with the equity requirements for a bill to perpetuate testimony as distinguished from any Code requirements. None of the cases cited in the opinion in support of the part above quoted are from states having Code provisions similar to our own. The several citations from New York decisions are based upon a Code provision which expressly requires that the petition must state: "3. If no action is pending the nature of the controversy which is expected to be the subject thereof." And: "6. *** Also the circumstances which render it necessary for the protection of the applicant’s rights, that the witness’s testimony should be perpetuated." New York Code Civ.Proc. § 872. It is therefore apparent that in the Irving Case, supra, the court did the precise thing which the above line of authorities held should not be done, namely, to construe the statute as though it made no change in the former equity requirements. Furthermore, it should be noted that there the application stated that "petitioner is without sufficient information whereon to identify the prospective parties litigant," which shows that the application was under subdivision 2 of section 2084 and not under subdivision 1 as in the case at bar. Therefore, Irving v. Superior Court was not dealing with the situation presented in the application now under consideration.
Now taking up the contention that the application must state the interest of applicant in the subject-matter of the litigation. To this it seems to me there are at least two answers: First, subdivision 1 of section 2084 contains no such requirement. Second, the mere fact that one expects to be a party to litigation is, in itself, a sufficient statement of one’s interest. The opinion of this court lays stress upon the fact that nowhere in the application is it shown that applicant is a stockholder or creditor of Kutner Goldstein Company, and the conclusion is drawn that for all that appears, the proof of none of the facts outlined is essential to preserve any right of the applicant. At first blush it might seem that the interest of the applicant in the subject-matter of the litigation should be shown, since otherwise no necessity for the perpetuation of these particular facts would be apparent. But it is not difficult to imagine a situation wherein an applicant might truthfully be compelled to state that he had no interest whatever in the subject-matter of the litigation other than the fact that he expected to be made a party. For example, suppose applicant John Jones Company expects adverse party to bring a suit against it in which it is to be alleged that applicant had in its employ William Smith, who, while acting within the scope of his employment in the driving of an automobile, ran over and killed the father of adverse party. Let us presume that William Smith never was in the employ of applicant. It follows then that applicant can have no real interest in the subject-matter of this litigation, other than that he expects to be made a party defendant. Applicant, realizing the possibility of such litigation, brings proceedings to perpetuate the testimony of John Doe, the only person who can definitely prove that William Smith never was in the employ of applicant. Now, if we follow the line of reasoning of petitioner herein, applicant John Jones Company’s mere statement in its application that it expected to be a party to an action is not sufficient, for it must also state its interest in the subject-matter of the litigation. This it cannot do. Therefore, applicant has no right to perpetuate the testimony of the sole witness who can prove its defense to the action! As another example, let us presume that applicant is a retired man of means. He and a friend contact adverse party, and an oral lease of an hotel is given by adverse party to the friend. Thereafter applicant spends much of his time in this hotel, looking after the desk in his friend’s absence, and acting as his friend’s messenger by taking to a clerk in the employ of adverse party the monthly rent which is paid in cash. In due time the friend becomes financially involved and defaults in the payment of the rent. Adverse party, realizing that the friend is insolvent and that applicant is financially responsible, and believing, as well he might under the circumstances, that applicant was a partner of the friend in the hotel business, concludes he will bring action against applicant as well as the friend for the unpaid rent. Applicant, realizing the possibility of such action, files his application to perpetuate the testimony of adverse party’s clerk to whom the cash had been paid. Now, if we apply the reasoning of petitioner in the case at bar, we find the following situation: Applicant was never a party to the lease, owes adverse party nothing, and has had no business dealings with adverse party. Therefore, he has no interest in the subject-matter of the litigation, and his attempt to question adverse party’s clerk on the amount of rent which adverse party received is a mere impertinence on appellant’s part. But this line of reasoning overlooks, as in the preceding illustration, the fact that what may originally have been none of one’s concern immediately becomes of importance to one when faced with the possibility of litigation. Obviously, if applicant in the supposed ensuing litigation cannot convince the court that he had no interest in the lease, it will be of vital importance to him to be able at least to get credit for all the rent which was actually paid. Therefore, it seems clear to me that the expectation of litigation is all that need be stated and that the framers of section 2084 had this fact in mind.
Petitioners contend that since the application failed to disclose the nature of the contemplated action, it cannot be ascertained whether the facts expected to be proved are relevant or material to the litigation. Therefore, he argues, it would be an idle act to undertake to perpetuate testimony, since it would be impossible to compel any of the witnesses to answer any questions until it was made to appear that such questions were relevant and material to some issue. A somewhat similar contention was made in Kibele v. Superior Court, 17 Cal.App. 720, 121 P. 412. There defendant filed a demurrer to the complaint and proceeded to take plaintiff’s deposition. Plaintiff refused to answer any questions and when cited for contempt argued that until an answer was filed no issue of fact was raised and hence it was impossible to tell whether the questions asked were relevant. The court in no uncertain language disposed of that contention, stating at page 722 of 17 Cal.App., 121 P. 412:
"While section 2065, Code of Civil Procedure, provides that ‘a witness must answer questions legal and pertinent to the matter in issue,’ it would be a narrow interpretation to construe the words ‘matter in issue’ as applying solely and alone to the naked allegations of the complaint which are denied by the answer. The sustaining of such contention would not only nullify the plain provisions of section 2021, Code of Civil Procedure, but likewise destroy the right given by statute for the perpetuation of testimony, as in neither case could a witness be required to testify against his will. The right to recover the subject of litigation, as legally set forth in the complaint, is the matter in issue." (Italics mine.)
Likewise, in Rossbach v. Superior Court, 43 Cal.App. 729, 730, 731, 185 P. 879, 880:
"It conclusively appears that the witness whose deposition was sought to be taken was a party to an action as distinguished from a special proceeding, and that he had appeared therein, and the statute in plain and explicit terms provides that the testimony of such witness may be taken by deposition in an action at any time after his appearance. *** The filing of the complaint constituted the bringing of the action (section 405, Code Civ.Proc.), and plaintiff’s right to have defendant’s deposition depends not alone upon whether it is material to issues tendered thereby, but the right thereto is equally clear if it would be material to any possible issue raised by new allegations contained in an amended complaint which the court might properly permit plaintiff to file. San Francisco Gas, etc., Co. v. Superior Court, supra. *** To sustain petitioner’s contention would not only nullify the plain provisions of section 2021, but destroy the right given by statute for the perpetuation of testimony, as in neither case could a witness be required to testify against his will." (Italics mine.)
This last paragraph is particularly significant here, since it answers petitioner’s contention that no issue to which testimony could be addressed is shown by the application herein. In San Francisco Gas Co. v. Superior Court, supra, the court, in considering the necessity of there being an issue of fact before a deposition could be taken, said at page 34 of 155 Cal., 99 P. 359, 360:
"But it is contended that this language of the Code must be limited by construction to the time before verdict or findings upon the issues of fact; for, it is said, after verdict or findings there is no issue of fact to be tried, and therefore no occasion for the taking of depositions. It may be answered to this objection that in case of an action it is not requisite that an issue of fact should have arisen in order to authorize the taking of depositions. As soon as the summons has been served, either party may commence the taking of depositions relevant to any possible issue that may arise upon a denial of the allegations of the complaint or upon the allegation of new matter in the answer. *** Clearly, therefore, the existence of an actual, as distinguished from a potential, issue of fact, is not, by the terms of the statute, made a conclusive test of the right to take depositions de bene esse. *** This disposition to amplify the remedy is plainly apparent in the provisions of our Code, both with respect to the proceeding to perpetuate testimony and the right to take depositions de bene esse."
The proceeding for the perpetuation of testimony is, by the Code, limited to situations where "the applicant expects to be a party to an action," and does not cover a situation where he is already a party. Now, before one may know the issues to be tried, not only must the action be commenced, but the answer must be filed. By that time the case is ready for trial, and therefore no situation is presented for the perpetuation of testimony. Therefore, to hold that it must appear from the application that the testimony sought is germane to the issues involved in an action to be filed is, it seems to me, to defeat the very purpose of the entire proceeding. This appears from the language quoted from Kibele v. Superior Court, and Rossbach v. Superior Court, supra. Should the expected litigation materialize the question of whether the testimony perpetuated is relevant and material to the issues as finally framed can then be readily decided. But to hold that the applicant must state under oath, possibly years in advance of the actual commencement of the expected action, what kind of action his adversary is going to bring against him and what the issue in the action will be, is, I feel, to require an impossibility. Take for example the facts expected to be proved as outlined in the application now under consideration. They might become material in any one of a number of different actions between the parties; i.e., actions arising directly or indirectly from stockholders’ liability, directors’ liability, conversion, the trust relation, and many others. Assume for example applicant surmises that a certain character of action will be brought, but in reality another and wholly and different kind is brought against him. What would be the result? Could it be said that because applicant had failed to divine correctly the nature of the action the adverse party intended to bring, that the perpetuated testimony could not be used? It seems to me that if the perpetuated testimony, or any portion of it, were relevant to the issues in the action which finally materialized, the court would admit the relevant portion regardless of whether applicant’s surmise concerning the nature of the action proved correct or not. The purpose of the Code requirements of a "general outline of the facts expected to be proved" is to give the adverse party notice of these facts rather than notice of applicant’s surmise as to what kind of an action he expects the adverse party will bring against him. An outline of the facts necessarily limits the scope of the examination far more definitely than could the statement of the nature of the expected action. This outline itself constitutes the issue and is sufficient to guide the court in the settlement of interrogatories if the witness be out of the state.
The application is required to be filed with the clerk. Code Civ.Proc. § 2086. Now, if the adverse party, after an examination of the application, deems the facts as outlined to be of sufficient importance to himself to warrant his attendance at the examination, he may attend and make such objections to the questions as he deems advisable. This is clearly indicated by the provisions of the chapter.
The use of an ordinary deposition is limited to the action in which it is taken, or another action between the same parties upon the same subject. Code Civ.Proc. § 2022. But under section 2088 the use of the testimony perpetuated is not so restricted. The statute expressly says, "if a trial be had between the parties named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such depositions prove," etc., the testimony may be used. This fact itself indicates that there is no necessity for the testimony perpetuated being limited, at the time it is taken, to some definitely prescribed issues other than the outline of the facts given in the application. Also, by sections 2088 and 2089, it is made clear that the materiality and relevancy of the perpetuated testimony is to be passed upon at the time it is offered in evidence. It can be used only after the death or disability of the witness has been first established, and even then it is subject to objection in the same manner as though the witness were being examined orally at the trial.
In Doyle v. Superior Court, supra, we find a case in which every argument advanced by petitioner herein, except the constitutionality of the statute, is fully answered and held to be without merit.
The decision in the case at bar holds that section 2084 must be construed as requiring a statement of the nature of the expected action, since otherwise a witness might be compelled to produce his private books and papers and reveal their contents regardless of their relevancy to any issue, a proceeding which would violate the witnesses’ rights under the search and seizure provision of the Constitution. In Estate of Johnson, 139 Cal. 532, at page 534, 73 P. 424, 425, 96 Am.St.Rep. 161, we find the following: "A court will not decide a constitutional question unless such construction is absolutely necessary." This rule has been cited with approval in Marin Municipal Water District v. Dolge, 172 Cal. 724, 726, 158 P. 187. In referring to an attack on the constitutionality of a law, our Supreme Court, after first holding that the person raising the question was not in a position to do so, said: "Not being required to pass upon the constitutional question sought to be raised, we would not be justified in entering into a discussion of its merits." Estabrook v. Industrial Acc. Com., 177 Cal. 767, 771, 177 P. 848, 849. In view of these principles, the facts now before us do not, in my opinion, necessitate a consideration of this constitutional question. It will be observed that in every case cited regarding this constitutional right, the person invoking its protection was confronted with an immediate demand for the production of his books and papers. This is true in Irving v. Superior Court, supra, relied upon strongly by petitioner, since examination of the petition for the writ of review in that case (appended to respondent’s brief herein) shows that the petitioner therein alleged (without any denial thereof being made) the following:
"That after the making of said orders of May 7, 1926, as aforesaid a subpoena duces tecum was issued out of said Superior Court and under the seal thereof directed to said Roger Brown and said James Irving commanding them and each of them to be and appear before said respondent Notary Public at his office in the city of Placerville, County of El Dorado at the time and place set forth in said notice as aforesaid and to have with them then and there certain books, papers and records and said subpoena has been served upon your petitioner herein."
In the case at bar, however, no request or direction for the production of any documentary evidence is shown. Therefore it cannot be said that the right of any of the petitioners herein to retain their documents or papers is involved. Now an examination of the facts expected to be proved in the case at bar shows that while some of them deal with the contents of the books of Kutner Goldstein Company, this is by no means true as to all. Many of the facts outlined do not involve the books in any way as, for example, the allegation regarding the conversion of certain assets of that company, the illegal loaning and borrowing of money, the directions to the witness to do the acts complained of, the placing of a false valuation upon the stock of the company for the benefit of the adverse parties, the part that the adverse parties took in preparing false annual statements, and the fixing of false prices in connection with the assets of the corporation, etc. To hold that, because certain facts expected to be proved might transgress the rights of petitioners under the search and seizure clause of the Constitution, the entire proceedings for the perpetuation of testimony must be annulled, is, it seems to me, to lose the proper perspective. To illustrate: An application for the perpetuation of testimony contains an outline of certain facts regarding the title to real estate. This is followed by a further statement that applicant expected to prove from a letter in the possession of the witness that in witness’ opinion the next President of the United States will have a luxurious crop of whiskers and be fond of whistling. Could it be said that because the latter facts are of no relevancy or materiality that the entire proceeding for the perpetuation of testimony should be prohibited? It seems to me that we should keep clearly in mind the precise matter now before the court, namely, the sufficiency of the application to perpetuate the testimony. By no means should it be confused with the problems which may arise either when the witness is asked some particular question or when some particular portion of that testimony is later presented to a court during the trial of a case. I believe that the decision of this court unduly concerns itself with the taking of the testimony and its use after it is perpetuated rather than with the sufficiency of the application to perpetuate the testimony itself.
The modern trend in all matters procedural is invariably towards simplification, and courts and the bar are united in their efforts to strip away from pleading and practice the technicalities which for years have slowed down the administration of justice. I feel that if, in considering a proceeding for the perpetuation of testimony, we are to read into the simple procedure the very requirements which it was the express intention of those framing the new procedure to discard, we are taking a position contrary to the express mandate of section 4 of our Code of Civil Procedure and contrary to the present and admittedly improved viewpoint with reference to litigation.