Adams v. Superior Court In and For San Bernardino County

• Decision Date: 22 November 1957
• Citation: 317 P.2d 983,49 Cal.2d 427
• Court: California Supreme Court
• Parties: Virginia Baker ADAMS, Petitioner, v. The SUPERIOR COURT OF The State of CALIFORNIA IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent. Helen Jordan Baker, Executrix, Real Party In Interest. L. A. 24621.

Page 983

317 P.2d 983

49 Cal.2d 427

Virginia Baker ADAMS, Petitioner, v. The SUPERIOR COURT OF The State of CALIFORNIA IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent Helen Jordan Baker, Executrix, Real Party In Interest.

L. A. 24621.

Supreme Court of California.

Nov. 22, 1957.

B. H. Findlay, Long Beach, Stuart S. Hillman and George I. Devor, Los Angeles, for petitioner.

No appearance for respondent.

John Lewis King and Stanley Mussell, Jr., San Bernardino, for real party in interest.

SHENK, Justice.

This is an application for a writ of mandate to compel the respondent Superior Court, in a proceeding to revoke the probate of the will of Herman R. Baker, to permit the contestant to inspect certain 'day books' or diaries kept by the testator. An alternative writ was issued.

The testator, during his lifetime, was engaged in the practice of dentistry in Upland, California. From 1952 until his death in 1955 he kept so-called day books or diaries. Entries were made in those books by the testator and by his assistants. The contestant, the petitioner herein, sought an order from the respondent court to require the executrix to produce those books for inspection to assist in the determination of the decedent's testamentary capacity.

An affidavit was executed on behalf of the executrix by Alberta Burge, a former assistant of the decedent, who made entries in the books in 1955. The affidavit stated that the day books contained entries in the hand of the decedent, but that the entries '* * * are substantially in the handwriting of others or herself.' It further stated that '* * * many entries are privileged communications, inseparably interwoven with the names of patients in that they indicate treatment. That under the circumstances the entire appoinment book or books are confidential and privileged.'

The Superior Court made the following order: 'Motion for inspection of the dental appointment books will be granted to the extent that Contestant may examine any entries in the appointment books for 1953 and 1954 made by Herman R. Baker himself.

'If more practical, the Executrix may, in lieu of the above, supply Contestant with photostatic copies of such pages as have any such entries thereon, after blocking out other entries and the Executrix may also block out names of any patients used, provided that initials or fictitious names be substituted for each such patient preserving thereby the identity of each such patient.' The validity of the foregoing order insofar as it grants inspection for the years 1953 and 1954 is not here involved.

It will be observed that the petitioner was denied access to the day books for the years 1952 and 1955 and that it was left to the executrix to select and copy the entries made by the decedent. The will was executed in November of 1953. The entries embraced in the order therefore relate only to the year of the execution of the will and the year following.

The petitioner proceeded under Code of Civil Procedure, section 1000. ¹ That section provides in its pertinent part: 'Ary court in which an action is pending, or a judge thereof may, upon notice, order either party to give to the other, within a specified time, an inspection and copy or permission to take a copy, of entries of accounts in any book, or of any document or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein.' The petitioner contends that if she is not permitted to inspect the books, and there is an adverse judgment in the trial court, the refusal to permit her to inspect all of the books will be raised by her on appeal and a reversal of the judgment based on the erroneous order would require her to incur the delay and expense of another trial. She contends that such a result would be inconsistent with the holdings of this court in Union Trust Co. of San Diego v. Superior Court, 11 Cal.2d 449, 81 P.2d 150, 118 A.L.R. 259, and McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 159 P.2d 944.

The trial court exercises judicial discretion in acting upon a motion to require the production of books, documents, or papers for inspection by an adverse party. Union Trust Co. of San Diego v. Superior Court, supra, 11 Cal.2d 449, 81 P.2d 150; Construction Products Corp. v. Superior Court, 103 Cal.App.2d 403, 229 P.2d 399; McKinley v. Southern Pacific Co., 80 Cal.App.2d 301, 181 P.2d 899. An order permitting inspection is not appealable. Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722; Collins v. Corse, 8 Cal.2d 123, 64 P.2d 137. Mandamus has been held applicable to redress abuses of discretion in ordering the production of records for inspection (Shell Oil Co. v. Superior Court, 109 Cal.App. 75, 292 P. 531), and in denying an application for inspection. Dowell v. Superior Court, 47 Cal.2d 483, 304 P.2d 1009. In such cases, the inquiry is whether the order constituted an abuse of discretion. Dowell v. Superior Court, supra, 47 Cal.2d 483, 304 P.2d 1009; Construction Products Corp. v. Superior Court, supra, 103 Cal.App.2d 403, 229 P.2d 399; Shell Oil Co. v. Superior Court, supra, 109 Cal.App. 75, 292 P. 531.

In Union Trust Co. of San Diego v. Superior Court, supra, 11 Cal.2d 449, at page 454, 81 P.2d 150, at page 153, this court stated that to support an order for the inspection of books or records, '* * * two separate, indispensable requirements must be made to appear: (1) that the books, or the paper, or the document that is sought to be inspected contains evidence that is material to an issue which is involved in the action or the proceeding with relation to which the order is proposed to be made; and (2) that the order by which such inspection may be authorized be so specific in its terms with reference to its designation or description of such book, paper, or document that it may be readily identified.' Unlike the taking of a deposition, an order requiring the production of books, papers, or records is subject to the limitation that the inspection sought must not be so broad as to infringe upon the constitutional immunity against unlawful search and seizure. McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d 386, 396, 159 P.2d 944.

The present case necessitates an examination of those requirements to determine whether the order here challenged will be allowed to stand.

The affidavit in support of the motion for inspection states: 'Affiant is of the opinion that an examination of said appointment books is vitally necessary in the proof of the contestant's case to determine the competency or incompetency of said decedent to execute a will on or about November 9, 1953, in that said appointment books will determine whether or not said decedent regularly practiced his profession in the years involved and it will determine whether the persons who received treatment received proper and adequate treatment and whether said decedent was mentally capable of practicing his proffession during said period of time.'

If the sole purpose of the inspection were to determine the regularity of the decedent's practice, the affidavit would not meet the first requirement stated in the Union Trust case for the reason that the 'regular' pursuit of a profession is not material to the determination of testamentary incapacity. The affiant also states that an inspection will determine whether the decedent administered proper and adequate treatment to his patients and whether he was mentally capable of practicing his profession at that time. The court reiterated the elements of testamentary capacity in Estate of Smith, 200 Cal. 152, at page 158, 252 P. 325, at page 328, where it was said: 'A testator is of sound and disposing...