Coopman v. Superior Court In and For San Mateo County

• Decision Date: 25 October 1965
• Citation: 237 Cal.App.2d 656,47 Cal.Rptr. 131
• Court: California Court of Appeals Court of Appeals
• Parties: Edwin G. COOPMAN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN MATEO, Respondent; Diana S. COOPMAN as real party in interest. Civ. 23012.

Page 131

47 Cal.Rptr. 131

237 Cal.App.2d 656

Edwin G. COOPMAN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN MATEO, Respondent Diana S. COOPMAN as real party in interest.

Civ. 23012.

District Court of Appeal, First District, Division 1, California.

Oct. 25, 1965.

Dinkelspiel & Dinkelspiel, Redwood City, for petitioner.

Wagstaffe, Daba & Hulse, Redwood City, for Diana S. Coopman.

SIMS, Justice.

Petitioner, by his petition for writ of prohibition, seeks an order of this court restraining respondent superior court from enforcing an order made and entered July 29, 1965 granting the motion, initiated by notice filed July 19, 1965, of real party in interest, to compel answers and produce things at a deposition. An alternative writ was issued in respect of the second portion of the order, and following return thereto the matter was regularly argued and submitted on the question of issuance of a peremptory writ. (See Seven-Up Bottling Co. v. Superior Court (1951) 107 Cal.App.2d 75, 236 P.2d 623.)

These proceedings stem from consolidated cross-actions for divorce pending in respondent superior court in which Diana S. Coopman is plaintiff and cross-defendant, and Richard Coopman is defendant and cross-complainant. Plaintiff moved the trial court for an order requiring petitioner to answer certain questions which he refused to answer, and to produce certain books and records which he refused to produce at the taking of his deposition June 25, 1965. The questions purport to explore petitioner's knowledge of matters concerning the stock of Nevada Electronics, Inc. and of the business and financial affairs of defendant. The documents sought, ¹ except insofar as they reflect petitioner's, as distinguished from said defendant's, transactions with the company, are those which would be found only among the books and records of Nevada Electronics, Inc., a corporation.

The admitted facts reflect that petitioner is, and at all times relevant was, the president of Nevada Electronics, Inc., a Nevada corporation; that he is a resident of the State of California, but he is not in this state for the purpose of transacting business for the corporation; that the corporation has at no time conducted business in the State of California, nor does it have its books or records in this state; and that all of the affairs of that corporation are handled by and under the control of agents and attorneys of the corporation located at Reno, Nevada. Neither petitioner, nor the corporation, is a party to the pending divorce actions.

The lower court granted the motion, and petitioner filed his petition herein. Relief was summarily denied in regard to the questions which the lower court ordered answered. There wss no clear showing that they were not designed to produce, or at least to lead to other questions which would produce information concerning 'the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts' (Code Civ.Proc. § 2016, subdivision (b)) concerning the nature, extent and value of the community property of the parties involved in the divorce action and the ability of the defendant therein to pay alimony. (See Code Civ.Proc. § 2016, subdivision (b); and Louisell, Modern California Discovery (1963) p. 47 and pp. 71-75.)

The alternative writ was granted in respect of that portion of the order which provided for the production of documents. It reads as follows:

'The motion to compel answers and produce things at a deposition, * * * is granted on the following conditions:

'* * * 2. The items to be produced, as identified on the aforesaid memorandum will be produced subject to the conditions enumerated in this court's decision of June 24, 1965, on file in this proceeding.' (Emphasis that of respondent court.) The order referred to was that made in response to a motion commenced by notice filed June 3, 1965 in the lower court by petitioner to quash a subpoena duces tecum issued May 26, 1965 ordering him to produce similar documents at a deposition on June 10, 1965. It provided: '1. If the records sought to be produced under said subpoena, are to be transported from Nevada to California this will be accomplished at the sole expense of the plaintiff and cross-defendant herein, including the transportation costs of a necessary custodian thereof; 2. If said records are to be examined in Reno Nevada, the plaintiff and cross-defendant will pay all costs and expenses will respect to any deposition of Edwin G. Coopman in Reno, Nevada, including the costs of necessary transportation of said Edwin G. Coopman, and his Counsel (if he chooses to have one accompany him) from San Francisco, California, to Reno, Nevada, and return.'

To complete the record it should be noted that following the order of June 24, 1965, a second subpoena duces tecum issued on June 25, 1965 directing the production of similar documents at the trial of the action on July 6, 1965. Petitioner then sought review in this court of the validity of the foregoing order and of the new subpoena duces tecum by petition for writ of prohibition which was denied without prejudice on July 13, 1965. ²

For the reasons hereinafter set forth it is concluded that the order to produce exceeds the power of the lower court, and the restraint on its enforcement should be made permanent.

Real party in interest points to that portion of section 1985 of the Code of Civil Procedure which provides: 'It [the subpoena] may also require him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence.' She asserts that petitioner, as president of the corporation, has control of its records, and may therefore be required to produce them. (See Filipoff v. Superior Court (1961) 56 Cal.2d 443, 449-450, 15 Cal.Rptr. 139, 364 P.2d 315.) The solution is not so simple. In seeking the corporate records real party in interest is in effect seeking to take the deposition of the corporation. (See Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 571-574, 7 Cal.Rptr. 109, 354 P.2d 637; and see McLain v. Superior Court (1950) 99 Cal.App.2d 109, 115-117, 221 P.2d 300.) Petitioner's alleged control over the records, as president, is not derived from any facts having a situs in or from the law of this state, but is entirely dependent on the law of the State of Nevada. It is necessary therefore to determine whether or not the corporation itself is amenable to process within this state. In Riverside & Dan River Cotton Mills v. Menefee (1914) 237 U.S. 189 at pages 194-195, 35 Ca.Ct. 579, at page 581, 59 L.Ed. 910, the applicable rule is stated 189 at pages 194-195, 35 S.Ct. 579, at page that the courts of one state may not, without violating the due process clause of the 14th Amendment, render a judgment against a corporation organized under the laws of another state where such corporation has not come into such state for the purpose of doing business therein, or has done no business therein, or has no property therein, or has no qualified agent therein upon whom process may be served; and that the mere fact that an officer of a corporation may temporarily be in the state or even permanently reside therein, if not there for the purpose of transacting business for the corporation, or vested with authority by the corporation to transact business in such state, affords no basis for acquiring jurisdiction or escaping the denial of due process under the 14th Amendment which would result from decreeing against the corporation upon a service has upon such an officer under such circumstances.'

Where the converse is true and the foreign corporation is for many purposes a resident of a second state because it holds its directors' meetings within that state, has its principal place of business and does part of the corporate business within that state, and the directors reside within that state, the court of the second state may exercise jurisdiction over the corporation and its resident officers and directors to compel the performance of acts without the state. (Hobbs v. Tom Reed Gold Min. Co. (1913) 164 Cal. 497, 500-501, 129 P. 781, 43 L.R.A.,N.S., 1112.) The court in that case, however, recognized: 'Our personal writs cannot run to persons who are not present in the state, and they cannot be enforced upon real property beyond its limits. The writ of mandate cannot be invoked to compel performance of an act which cannot be performed within this state, but must be done, if at all, at some place in another state. So far as these objections go, the refusal of the writ was proper.' (164 Cal. at p. 500, 129 P. at p. 782.) So here, in the absence of jurisdiction over the corporation, our courts cannot compel an officer...