Fielder v. Berkeley Properties Co.

Decision Date25 January 1972
Citation23 Cal.App.3d 30,99 Cal.Rptr. 791
CourtCalifornia Court of Appeals Court of Appeals
PartiesJerry W. FIELDER, as Director of Agriculture of the State of California, Plaintiff, Respondent, and Appellant, v. BERKELEY PROPERTIES COMPANY, a partnership consisting of Frank E. Sabatte, et al., Defendants, Appellants, and Respondents. Civ. 29310.

Fred F. Cooper, Oakland, for appellants.

Evelle J. Younger, Atty. Gen. of Cal., Roderick Walston, Deputy Atty. Gen., San Francisco, for the State of Cal.

MOLINARI, Presiding Justice.

Banos Land, Inc. and Berkeley Land Company, Inc. (hereinafter 'the corporations'), Berkeley Properties Company (hereinafter 'the partnership'), and A. M. Sabatte and Mary Sabatte (hereinafter 'the individuals'), collectively referred to as appellants, appeal from a judgment granting the petition of the Director of Agriculture (hereinafter 'the Director') for an order compelling obedience to an administrative subpoena. The Director appeals from that portion of the judgment determining that the partnership is entitled to assert the privilege against self-incrimination.

The Director served a subpoena duces tecum on appellants in connection with an investigation by the Director of a possible conspiracy between appellants and Berkeley Farms, a licensed milk distributor, to violate sections 62042 and 62641 of the Agricultural Code prohibiting the payment of secret rebates by milk distributors to their wholesale customers. When appellants refused to respond to the subpoenas the Director filed a petition, pursuant to Government Code section 11187, 1 for an order compelling them to attend and testify and to produce the papers required by the subpoenas before the person named therein.

The petition, after designating the identities of appellants, alleged essentially that on February 27, 1970, the Director served on each of appellants, as the respondents named therein, a subpoena duces tecum pursuant to sections 61931 et seq., and 61471 et seq. of the Agricultural Code, in conjunction with section 11180 et seq. of the Government Code, compelling them to appear and testify at an investigational hearing conducted by the Director, for the purpose of detemining whether appellants had committed, in conjunction with Berkeley Farms, any violations of the provisions of the Agricultural Code of secret rebates to wholesale customers for the purpose of securing and maintaining the accounts of said customers. Copies of said subpoenas and the declarations in support thereof were attached to the petition as exhibits. The petition also alleged that appellants failed to appear on the day set for said investigational hearings and that they had advised the Director that they would refuse to obey the terms of said subpoena duces tecum. Also attached to the petition, as an exhibit, was the declaration of Chester D. Schiveley. 2

Upon the filing of the petition the superior court entered its order directing appellants to appear before the court at a specified time and place to show cause why they should not be ordered to appear before the Director or his duly authorized representative to testify and produce all books and records required by the subpoenas duces tecum attached to the petition. Appellants did not file a responsive pleading to said petition but on the date set in the order to show cause appeared by and through their attorney. Appellants' counsel objected to proceeding on affidavits. He also indicated that his clients intended to exercise their rights against self-incrimination and unreasonable search and seizure. He stated further that if the matter proceeded on affidavits he would object to their sufficiency, and to the manner in which the subpoenas were served. Following a colloquy between court and counsel it was agreed that the matter would be submitted on briefs.

Thereafter, appellants, prior to the filing of their points and authorities, filed a pleading entitled 'Response to Petitioner, Request For Hearing, and Motion to Quash.' In said response appellants admitted all of the allegations of the petition excepting the allegation as to the purpose for which the subpoenas were issued. The response objected to the consideration of Schiveley's declaration on the basis that it contained hearsay, opinion and conclusions and that it was not served at the time the subpoenas were served. 3 Objection was also made in in the response that the subpoenas were issued to firms and corporations, rather than witnesses; that the subpoenas asked for documents and records not referred to in the affidavits; that the subpoenas were indefinite; and that the affidavits in support of the issuance of the subpoenas were deficient in that they contained hearsay and conclusions of fact and were indefinite and vague. The response also asserted objections on constitutional grounds predicated upon the claim that the petition, the subpoenas and the affidavits in support of their issuance violated appellants' rights against self-incrimination and unreasonable search and seizure, and on the basis that appellants were deprived of due process because no hearing is provided by the statutes whereby the allegations of the affidavits can be challenged and no provision is made for the quashing of said subpoenas. Accordingly, appellants prayed that the petition be denied or dismissed, and, in the alternative, that the subpoenas be quashed on the basis that they violated appellants' constitutional rights. In said prayer, appellants requested that they be given a full hearing on the allegations set forth in the affidavits issued in support of the subpoenas on the ground that they would be deprived of due process if the court accepted such allegations at face value without a hearing.

The court, thereafter, upon the receipt of points and authorities from both the Director and appellants, entered its judgment directing appellants to appear and testify in accordance with the subpoenas duces tecum at an investigational hearing convened by the Director and, at such hearing, to produce the records and books referred to in the subpoenas. Said judgment also provided that the corporations shall not refuse to answer any questions or produce any book or record on the ground that said answer, or said book or record, will tend to incriminate said corporations. The judgment provides, further, that the partnership and the individuals shall not be required, at said investigational hearing, to answer any question, or produce any book or record, which tends to incriminate said partnership or the individuals.

Appellants contend that the affidavits supporting the subpoena duces tecum do not properly describe the documents subpoenaed and the custodians thereof; that the subpoenas do not properly describe the documents subpoenaed and the person subpoenaed; that the subpoenas were improperly served on the partnership and the corporations because they were served on John Sabatte whose relationship to the corporations is not shown, and he is not shown to have custody of any of the records of the partnership; that appellants were entitled to a hearing in the nature of a motion to quash and that they were improperly denied such a hearing; and that the judgment is improper because it orders the corporations and the partnership to appear and testify, rather than ordering a witness to appear and testify.

The Director contends, on his appeal, that the trial court erred in holding that the partnership is entitled to assert the privilege against self-incrimination in these proceedings.

Adverting to the authority of the Director to investigate suspected violations of the Agricultural Code, we first take cognizance of certain pertinent statutes. Government Code section 11180 provides that 'The head of each department may make investigations and prosecute actions concerning: (a) All matters relating to the business activities and subjects under the jurisdiction of the department. (b) Violations of any law or rule or order of the department. (c) Such other matters as may be provided by law.' In connection with such investigations and actions the Director may inspect books and records and 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. (Gov.Code, § 11181, subds. (a) and (e).)

The superior court has jurisdiction to compel the attendance of witnesses, the giving of testimony and the production of the papers, books, accounts and documents required by the subpoenas (Gov.Code, § 11186), and such attendance may be compelled by an order of the court based upon an order to show cause upon the filing of a petition by the Director for an order compelling such attendance. (Gov.Code, §§ 11187, 11188.) The matters required to be stated in the petition are set forth in section 11187. 4 Section 11188 provides as follows: 'Upon the filing of the petition the court shall enter an order directing the person to appear before the court at a specified time and place and then and there show cause why he has not attended or testified or produced the papers as required. A copy of the order shall be served upon him. If it appears to the court that the subpena was regularly issued by the head of the department, the court shall enter an order that the person appear before the officer named in the subpena at the time and place fixed in the order and testify or produce the required papers. Upon failure to obey the order, the person shall be dealt with as for contempt of court.'

The subpoenas issuable by the Director are for purely investigative purposes and it is not necessary that a trial or hearing be pending. (Brovelli v. Superior Court, 56 Cal.2d 524, 528, 15 Cal.Rptr. 630, 364 P.2d 462.) Moreover, since the proceedings pursuant to the Government Code (§§ 11180--11191) do not relate to judicial proceedings but to...

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28 cases
  • People ex rel. Franchise Tax Bd. v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • February 7, 1985
    ...whether the subpoena conforms to legal and constitutional standards. As the court stated in Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30, at page 39, 99 Cal.Rptr. 791: "[The hearing in the superior court] ... pursuant to Government Code section 11188 ... is confined to determi......
  • People ex rel. Dept. of Con. v. El Dorado
    • United States
    • California Court of Appeals Court of Appeals
    • May 9, 2003
    ...law or rule or order of the department. [¶] (c) Such other matters as may be provided by law." Relying on Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30, 99 Cal. Rptr. 791, the County retorts that Government Code section 11180 does not apply to judicial proceedings. This positio......
  • Pacific-Union Club v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • July 10, 1991
    ...605 P.2d 813; Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 156 Cal.Rptr. 55; Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30, 99 Cal.Rptr. 791.) Other cases conclude that a Government Code section 11188 order is directly appealable as a final judgmen......
  • City of Santa Cruz v. Patel
    • United States
    • California Court of Appeals Court of Appeals
    • September 18, 2007
    ...605 P.2d 813; Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 156 Cal.Rptr. 55; Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30, 99 Cal.Rptr. 791. See also Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 18, 56 Cal. Rptr.2d 706, 923 P.2d 1.) Of course, a case ......
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1 books & journal articles
  • Gone Fishing? Preventing Accusations of Investigative Subpoena Overreach
    • United States
    • California Lawyers Association Public Law Journal (CLA) No. 43-2, June 2020
    • Invalid date
    ...investigative subpoenas, see Brovelli v. Superior Court (Mosk), supra, 56 Cal.2d at p. 531 and Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30, 43-44.24. Brovelli v. Superior Court (Mosk), supra, 56 Cal.2d at p. 529.25. (1980) 26 Cal.3d. 397, 402.26. Younger v. Jensen, supra, 26 ......

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