The same concept was stated in Rolf Homes,Inc. v. Superior Court, supra, 186 Cal.App.2d 876, 881, and to some extent in Laddon v. Superior Court, supra, 167 Cal. App. 391, wherein (at p. 395) the court expressed the view that relevancy as applied to pretrial examination (discovery) is more loosely construed than it is when applied at the trial. The argument is based in part on the decision in TwinLock, Inc. v. Superior Court, 171 Cal.App.2d 236 [ 340 P.2d 748], which held that the rules regarding discovery prior to the enactment of the 1957 discovery statutes were still applicable, and that the Legislature was without constitutional power to change them. For reasons set forth below, the Twin Lock decision should be overruled.
In the same opinion (pp. 393, et seq.) Twin Lock, Inc. v. Superior Court, 171 Cal.App.2d 236 [ 340 P.2d 748], was disapproved, because of its holding that the Legislature had no constitutional power to alter the test of materiality to the issues. The same rule (relevancy to the subject matter) was applied in West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d 407, at pages 416 and 421, in regard to interrogatories.
In opposition to that motion Putnam first obtained an order of the court authorizing him to dismiss his special defense, after which he argued that the notes and memoranda were no longer admissible evidence. The motion for inspection was then denied on the authority of Twin Lock v. Superior Court, 171 Cal.App.2d 236 [ 340 P.2d 748]. At that time the rules announced in the Twin Lock case justified the denial of the motion to inspect documents because it had held that inspection was not permissible unless the documents involved would be admissible on the trial of the action.
The alleged failure to show good cause is predicated upon: (1) failure to show relevancy of the depositions to the "issues" of the case; (2) failure to show that the depositions would be admissible at the trial of the action; and (3) failure to show necessity for inspection. From these premises the real parties conclude, in reliance upon Twin Lock, Inc. v. Superior Court, 171 Cal.App.2d 236 [ 340 P.2d 748], and the earlier cases cited therein, that an order requiring them to produce the unsigned depositions would amount to an unreasonable and unlawful search and seizure. They also claim that such an order would violate some undisclosed privilege.
There the court said: "Petitioner next argues that the Legislature was without constitutional power to enact a statute which provides that a party or witness must disclose material without reference to its admissibility. The argument is based upon the rule announced in Twin Lock, Inc. v. Superior Court, supra, 171 Cal.App.2d 236 [ 340 P.2d 748]. There the court reasoned that in spite of the express provision of section 2031, the right to the production and inspection of documents is not as broad as the right to examine a party under the provisions of section 2016 It based this conclusion upon a review of several Supreme Court cases (particularly McClatchy Newspapers v. Superior Court, 26 Cal.2d 386 [ 159 P.2d 944]) which had interpreted the right to inspect documents as such right existed under section 1000 of the Code of Civil Procedure (since repealed by the discovery act).
See, for example, Kullman, Salz & Co. v. Superior Court, 15 Cal.App. 276, 285-286, 114 P. 589; Shell Oil Co. v. Superior Court, 109 Cal.App. 75, 80-81, 292 P. 531; McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d 386, 396, 159 P.2d 944; Adams v. Superior Court, supra, 49 Cal.2d 427, 431, 317 P.2d 983. It is also true that the foregoing cases seem to erect the requirement of showing of materiality (in the strict sense of admissibility in evidence in the case) into a constitutional requirement, and that two decisions of a District Court of Appeal have so construed them: Twin Lock, Inc. v. Superior Court, 171 Cal.App.2d 236, 340 P.2d 748; Steele v. Superior Court, supra, Cal.App., 9 Cal.Rptr. 14 (hearing granted by Supreme Court). We have grave doubts as to the validity of this construction.
Exhibit D is an answering letter from plaintiff's attorney dated August 7, 1959, in which he stated that "it is our intention to move for sanctions unless [Beeler] is present for the taking of his deposition [on August 11]. . . ." Attorney for plaintiff referred to section 2019 of the Code of Civil Procedure, which provides, in part, that in case of a party witness, service of a subpoena upon the deponent is not required if proper notice of the taking of the deposition be made, and relies upon Twin Lock, Inc. v. Superior Court (1959), 171 Cal.App.2d 236 [ 340 P.2d 748] to substantiate this position. The defendant did not attend the taking of his deposition on August 11, 1959, albeit his counsel was ready to have him available at a later date to be selected which was not agreed to by counsel for the plaintiff.
The instant case is distinguishable from such decisions as Holm v. Superior Court, supra, 42 Cal.2d 500, wherein it was sought to examine a report prepared and furnished for the dominant purpose of enabling the attorneys for defendant or its insurer to properly defend any claim. In the same category are Jessup v. Superior Court, 151 Cal.App.2d 102, 104 [ 311 P.2d 177]; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709, 716 [ 339 P.2d 567]; Twin Lock, Inc. v. Superior Court, 171 Cal.App.2d 236, 238 [ 340 P.2d 748]; Rust v. Roberts, 171 Cal.App.2d 772, 776-777 [ 341 P.2d 46]. That the San Francisco case, supra, is in accord with the weight of authority throughout the nation is attested by an annotation appearing in 37 American Law Reports 2d 1152, entitled "Names and addresses of witnesses to accident or incident as subject of pretrial discovery."
Hearing Ordered July 13, 1959. See, also, 340 P.2d 748. [340 P.2d 744] W. Claude Fields, Jr., Los Angeles, for petitioner.
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):