Brovelli v. Superior Court of Los Angeles County

Decision Date28 August 1961
Citation56 Cal.2d 524,15 Cal.Rptr. 630,364 P.2d 462
CourtCalifornia Supreme Court
Parties, 364 P.2d 462 Edmund F. BROVELLI et al., Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents; Stanley Mosk, as Attorney General, Real Party In Interest. L. A. 26374.

William T. Selby and Glenn C. Garman, Ventura, for petitioners.

No appearance for respondents.

Stanley Mosk, Atty. Gen., William C. Dixon, Asst. Atty. Gen., Miles J. Rubin, Vincent W. Thorpe, George J. Roth and Otto J. Hetzel, Deputy Attys. Gen., for real party in interest.

GIBSON, Chief Justice.

By this proceeding in certiorari petitioners, a California corporation named Rocklite Products and four of its officers, seek to annul an order adjudging them guilty of contempt.

In connection with an investigation commenced by the Attorney General to determine whether the Cartwright Act or the Unfair Practices Act was being violated by the concrete block industry, Deputy Attorney General Rubon, on December 14, 1960, issued a subpoena duces tecum directed to Rocklite, a manufacturer and distributor of concrete blocks. The subpoena called for the production of specified documents covering a period from September 1, 1959, to December 14, 1960. Rocklite did not comply with the subpoena, and on December 20 a court order was entered directing it to show cause why it should not produce the described documents. The corporation did not respond to this order, and on January 4, 1961, a court order was entered directing it to appear before the Attorney General and produce the documents. Upon Rocklite's failure to comply with the order of January 4, a contempt proceeding was initiated against the corporation, its president, Edmund F. Brovelli, its two vice presidents, Donald O. McCall and E. A Peterson, and its secretary-treasurer, John R. Anderson. The court determined that Rocklite and the officers were guilty of contempt for refusing to obey the order of January 4, fined the corporation $500, and ordered that each of the officers be committed to the county jail until the corporation produced the documents.

Section 11180 of the Government Code authorizes the head of each department to make investigations and prosecute actions concerning 'All matters relating to * * * subjects under the jurisdiction of the department,' and subdivision (e) of section 11181 provides that in connection with such investigations and actions he may issue 'subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents and testimony in any inquiry, investigation, hearing or proceeding pertinent or material thereto in any part of the State.' Under section 11187 the head of a department in the event of non-compliance with 'such subpoena,' may petition 'the superior court in the county in which the hearing is pending for an order compelling the person to attend and testify or produce the papers required by the subpoena before the officer named in the subpoena.' Section 11188 provides that, upon the filing of such a petition, the court shall enter an order to show cause why there has not been compliance and that, if it appears to the court that the subpoena was regularly issued, the court shall enter an order directing that 'the person appear before the officer named in the subpoena at the time and place fixed in the order and testify or produce the required papers.' It is further provided in section 11188 that upon failure to obey the order 'the person shall be dealt with as for contempt of court.'

The subject of investigation here was one which fell within the jurisdiction of the Attorney General. (Bus. & Prof.Code, §§ 16752, 16753, 16754; Civ.Code, §§ 3369, subd. 5, 3370; Corp.Code, § 4690.) As head of the Department of Justice, therefore, he could investigate the subject in view of the authority conferred by section 11180 of the Government Code, and he was entitled to subpoena Rocklite in that connection under section 11181. 1

A formal administrative hearing need not be pending before a subpoena issued by the head of a department can be judicially enforced under sections 11187 and 11188. Section 11181 permits issuance of a subpoena for purposes of an 'Investigation,' an 'inquiry,' or a 'proceeding,' as well as a 'hearing,' and in providing for judicial enforcement sections 11187 and 11188 refer generally to 'such subpoena' and 'the subpoena,' without distinction or qualification. While under section 11187 the petition for judicial enforcement is to be filed in the court of the county in which 'the hearing is pending,' the only reasonable conclusion is that the word 'hearing' is used in a broad sense to refer to all the circumstances in which a subpoena may be issued under section 11181. Moreover, restricting judicial enforcement to a situation where a formal hearing is pending would be contrary to the over-all statutory by pose of assuring effective administration by the various departments. Such administration, of course, frequently depends upon investigations which do not culminate in a formal hearing, and those investigations would be significantly impeded without the aid of the compulsory process provided for.

We do not agree that, since possible violations of the Cartwright and Unfair Practices Acts are in issue, certain sections of those acts cited by petitioners (Bus. & Prof.Code, §§ 16758, 17083, 17084, 17086) have the effect of rendering the Government Code provisions under consideration inapplicable. While the cited sections relate to the discovery of evidence, they concern only discovery during the pendency of an action brought under the acts; they do not deal with the power of the Attorney General to compel production of evidence in connection with an investigation where no action is pending. They are not inconsistent with the provisions of the Government Code giving the Attorney General that power, and it is unreasonable to assume that the Legislature intended to deny him the use of the Government Code provisions in this important area of law enforcement.

There is no constitutional objection to a system under which the heads of departments of government may compel the production of evidence for purposes of investigation, without instituting formal proceedings against the one from whom the evidence is sought or filing any charges against him. As has been said by the United States Supreme Court, the power to make administrative inquiry is not derived from a judicial function but is more analogous to the power of a grand jury, which does not depend on a case or controversy in order to get evidence but can investigate 'merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.' United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 364, 94 L.Ed. 401. Of course, department heads cannot compel the production of evidence in disregard of the privilege against self-incrimination or the constitutional provisions prohibiting unreasonable searches and seizures. It should be pointed out, however, in this connection that where, as here, the records of a corporation are the object of a subpoena, the situation differs from one where the private papers of an individual are sought. Neither the corporation nor a person having custody of its records can refuse to produce them on the basis of the privilege against self-incrimination. Wilson v. United States, 221 U.S. 361, 377 et seq., 31 S.Ct. 538, 55 L.Ed. 771; see Curcio v. United States, 354 U.S. 118, 122, 77 S.Ct. 1145, 1 L.Ed.2d 1225. Insofar as the prohibition against unreasonable searches and seizures can be said to apply at all it requires only that the inquiry be one which the agency demanding production is authorized to make, that the demand be not too indefinite, and that the information sought be reasonably relevant. United States v. Morton Salt Co., supra, 338 U.S. 632, 651-654, 70 S.Ct. 357; Oklahoma Press Pub. Co. v. Walling, 327 U.S....

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  • People ex rel. Franchise Tax Bd. v. Superior Court
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    • ABA Antitrust Library State Antitrust Practice and Statutes (FIFTH). Volume I
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