Ahern v. Superior Court In and For Los Angeles County

• Full Citation: Ahern v. Superior Court In and For Los Angeles County, 245 P.2d 568, 112 Cal.App.2d 27 (Cal. App. 1952)
• Decision Date: 25 June 1952
• Citation: 245 P.2d 568,112 Cal.App.2d 27
• Court: California Court of Appeals Court of Appeals
• Parties: . Civ. 19088. District Court of Appeal, Second District, Division 3, California

Page 568

245 P.2d 568

112 Cal.App.2d 27

AHERN et al. v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY et al.

Civ. 19088.

District Court of Appeal, Second District, Division 3, California.

June 25, 1952.

Thomas R. Fisher, Los Angeles, and Holbrook, Tarr & O'Neill, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

McLaughlin & Casey, Los Angeles, for real parties in interest.

VALLEE, Justice.

Petitioners seek a writ of mandate commanding the Superior Court of the County of Los Angeles 1) to annul its order granting a motion of defendants to quash a subpoena for the taking of the deposition of one Jack Kissel in an action pending in that court entitled Margaret F. Ahern et al. v. Charles M. King et al., #567,679,2) to deny the motion, and 3) to enforce the claimed right of petitioner to take the deposition under subdivision 6 of section 2021 of the Code of Civil Procedure.

Petitioners brought action 567,679, a stockholder's derivative suit for an accounting, for the benefit of Southern California Meat Company, a corporation, referred to as the corporation. The named defendants are Charles M. King, William L. Koch, Herbert Kinney, and Trophy Meat Packers, Inc., a corporation. The complaint alleges that during 1943, 1944, and 1945 the defendant Charles M. King, acting on behalf of the corporation, leased some of its wholesale facilities to others at a stated rental; that in addition to the stated rental which was paid to the corporation, King exacted rent from said wholesalers for the use of the facilities of the corporation in the sum of $140,000; that King collected the $140,000 and did not pay it to the corporation.

The defendants Charles M. King, William L. Koch, and Trophy Meat Packers, Inc., filed an answer, verified by King, specifically denying the aforesaid allegations of the complaint.

Thereafter at the request of the plaintiffs a subpoena issued for the taking of the deposition of Jack Kissel. The affidavit upon which the subpoena issued states that Kissel is the only witness who can testify that: about November, 1942, he, as a partner in a hotel and restaurant supply company, leased space and facilities from the corporation; King acted for the corporation; commencing in November, 1942, and continuing through 1944, Kissel and his partners continued to lease the space and facilities; during this period of time King demanded sums of money of Kissel to be paid weekly to King in addition to the agreed rent; Kissel will testify that the sums so paid exceeded $140,000; Kissel is the only person who can testify to the payments of said sums and to the amount; no person other than King and Kissel was present at the times the sums were paid.

The defendants filed a motion to quash the subpoeana, which was granted. The affidavit filed in support of the motion did not deny that Kissel and King were the only persons present at the times of the alleged payments. The motion was based on the ground that the facts do not come within subdivision 6 of section 2021 of the Code of Civil Procedure.

The matter is submitted on the petition for the writ, the demurrer of respondent court, and the demurrer and answer of the real parties in interest. No issue of fact is made.

Section 2021 provides: 'The testimony of a witness in this State may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant, and in a special proceeding after a question of fact has arisen therein, in the following cases: 1. When the witness is a party to the action or proceeding * * *; * * * 6. When the witness is the only one who can establish facts or a fact material to the issue; provided, that the deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause; * * *.'

Is Kissel the only witness who can establish facts or a fact material to the issue? Does the fact that King, a party-defendant to the action, will testify contrary to the testimony to be given by Kissel, preclude Kissel from being the only witness who can establish the facts or a fact, as argued by respondents? The question presented was expressly left open in Verdier v. Superior Court, 88 Cal.App.2d 527, 535, 199 P.2d 325.

Section 2021 is 'to be liberally construed, with a view to effect its objects and to promote justice.' Code Civ.Proc. § 4. 'The statute authorizing the taking of depositions to be used in pending trials should be liberally construed to the end that a litigant in a pending action may be afforded a reasonable opportunity to procure available testimony in support of his cause. Pollak v. Superior Court, 197 Cal. 389, 240 P. 1006. That opportunity, under some circumstances, might prevent a miscarriage of justice.' Moran v. Superior Court, 38 Cal.App.2d 328, 334, 110 P.2d 1096, 1099. 'The taking of a deposition is one of the most efficient and necessary proceedings known to the law in aid of the court and in furtherance of the ends for which the court was created.' Burns v. Superior Court, 140 Cal. 1, 10, 73 P. 597, 601. The provisions of the code with respect to the taking of depositions 'were designed to simplify procedure--to promote the ends of justice by enabling litigants to protect their substantial rights by simpler, speedier, and more efficacious means. 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, * * * the necessity of taking [his deposition] is apparent.' San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 35-36, 99 P. 359, 361; Golden State Co. v. Superior Court, 25 Cal.App.2d 176, 178, 76 P.2d 728. Ordinarily a litigant is entitled to take a deposition in the cases provided for, as a matter of right. Carnation Co. v....