Flora Crane Service, Inc. v. Superior Court In and For City and County of San Francisco

• Citation: 45 Cal.Rptr. 79,234 Cal.App.2d 767
• Court: California Court of Appeals
• Decision Date: 07 June 1965
• Parties: FLORA CRANE SERVICE, INCE., a California corporation, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent. Conrad C. EUSTACE, doing business under the fictitious name of Maccon Masonry Materials, Inc., and Maccon Masonry Material, Inc., a California corporation, Real Parties in Interest. Civ. 22660.

Page 79

45 Cal.Rptr. 79

234 Cal.App.2d 767

FLORA CRANE SERVICE, INCE., a California corporation, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent.

Conrad C. EUSTACE, doing business under the fictitious name of Maccon Masonry Materials, Inc., and Maccon Masonry Material, Inc., a California corporation, Real Parties in Interest.

Civ. 22660.

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

June 7, 1965.

Hearing Denied Aug. 4, 1965.

Quentin L. Kopp, of Goldstein, Kopp & Skinner, San Francisco, for petitioner.

Adrian W. Rose, San Francisco, for real party in interest.

SULLIVAN, Presiding Justice.

Petitioner seeks a writ of mandate commanding respondent court to vacate that portion of its order entered on February 3, 1965, which denied petitioner's motion for further responses to written interrogatories and to vacate a subsequent order entered February 23, 1965 quashing a subpoena duces tecum to take deposition. ¹ We issued an alternative writ of mandate. Real parties in interest, defendants below, have made a return thereto purportedly by verified answer (Code Civ.Proc. § 1809 ²; Cal. Rules of Court, rule 56(c)). The return attaches and incorporates by reference a transcript of the hearing on the motion to quash the subpoena but not of the earlier hearing on the motion for further responses to the interrogatories. It alleges that petitioner was not denied issuance of a 'legal and proper' subpoena and that petitioner 'agreed to issue such a subpoena within the limits designated by the Court.' Except for what may be implied in the foregoing, the return contains no denials of the material allegations of the instant petition.

The action pending in respondent court was commenced on October 14, 1964 by petitioner against real parties in interest Conrad C. Eustace doing business under the fictitious name of Maccon Masonry Materials, Inc. and Maccon Masonry Marterials, Inc., a California corporation ³ to recover damages for breach of contract. Recovery is sought on the theory that at all material times Maccon was used by Eustace 'as his alter ego,' that Maccon and Eustace 'are one and the same' and that unless they are held to be 'the alter ego of one another' inequity and injustice will result. ⁴ Defendants filed an answer and cross-complaint. The answer denies the material allegations of the complaint and alleges six separate affirmative defenses. The cross-complaint seeks recovery of money against petitioner and other corss-defendant ⁵ on a theory of alter ego conveniently if unimaginatively asserted by apparently employing almost word for word (mutatis mutandis) the pertinent allegations of petitioner's complaint. Cross-defendants filed an answer to the cross-complaint denying the material allegations thereof.

Following is a chronology of the procedural events thereafter occurring and giving rise to the problems now before us: On December 15, 1964 petitioner served and filed a notice for the taking of the deposition of Eustace upon oral examination on January 15, 1965 and also filed and served written interrogatories on Maccon pursuant to Code of Civil Procedure, section 2030. On December 24, 1964 Maccon filed and served its answers thereto. On January 6, 1965 petitioner filed its notice of motion for order requiring further responses to interrogatories and on January 8, 1965 notified counsel for real parties in interest that the deposition of Eustace 'would be cancelled' until the above motion had been resolved. On February 3, 1965 respondent court filed its order denying in part and granting in part petitioner's motion. On February 15, 1965 petitioner served and filed a notice for the taking of the deposition of Eustace upon oral examination on February 24, 1965 and obtained the issuance, on declaration, of a 'subpoena duces tecum to take deposition' directed to Eustace and requiring production of certain documents at the time and place of the above deposition. On February 19, 1965 Eustace filed his notice of motion to quash the above subpoena duces tecum. On February 23, 1965 respondent court by its minute order 'quashed subpoena without prejudice to right to seek new subpoena and modified questions.' On February 25, 1965 petitioner instituted the instant proceeding in mandamus.

We are thus called upon to determine the propriety of two separate orders dealing with discovery procedures. The writ of mandate is a proper remedy for reviewing such procedures and for obtaining relief from an order denying a party utilization thereof. (Carlson v. Superior Court (1961) 56 Cal.2d 431, 435-436, 15 Cal.Rptr. 132, 364 P.2d 308; Regents of University of California v. Superior Court (1962) 200 Cal.App.2d 787, 789, 19 Cal.Rptr. 568; Wooldridge v. Mounts (1962) 199 Cal.App.2d 620, 629, 18 Cal.Rptr. 806.) It may be thus availed of to compel the trial court to order a party to answer interrogatories propounded pursuant to section 2030 (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 414-415, 15 Cal.Rptr. 119, 364 P.2d 295; Brown v. Superior Court (1963) 218 Cal.App.2d 430, 433, 32 Cal.Rptr. 527; Smith v. Superior Court (1961) 189 Cal.App.2d 6, 10, 11 Cal.Rptr. 165, 88 A.L.R.2d 650; Ryan v. Superior Court (1960) 186 Cal.App.2d 813, 816, 9 Cal.Rptr. 147) or to determine the propriety of an order quashing or refusing to quash a subpoena duces tecum issued pursuant to section 1985 for use in conjunction with a deposition upon oral examination. (Strauss v. Superior Court (1950) 36 Cal.2d 396, 403, 224 P.2d 726; Wemyss v. Superior Court (1952) 38 Cal.2d 616, 617, 241 P.2d 525; Pelton Motors, Inc. v. Superior Court (1953) 120 Cal.App.2d 565, 570, 261 P.2d 275.) 'A writ of mandamus may issue not only to enforce a proper discovery right [citations], but also to prevent improper discovery proceedings * * *.' (Harabedian v. Superior Court (1961) 195 Cal.App.2d 26, 30, 15 Cal.Rptr. 420, 422, 89 A.L.R.2d 994.)

However the writ will not be granted unless the trial court has abused its discretion. (West Pico, supra, compelling answers to written interrogatories propounded pursuant to section 2030; Smith supra, idem.; Ryan, supra, idem.; Wemyss, supra, compelling quashing of subpoena duces tecum issued in connection with deposition; Strauss, supra, compelling vacating of order quashing subpoena duces tecum issued in proceeding to perpetuate testimony; see 3 Witkin, Cal. Procedure (1954), Extraordinary Writs, §§ 77-78 and 1963 Supp., idem.; Witkin, Cal. Evidence, § 560, [234 Cal.App.2d 776] p. 609.) ⁶ In determining whether or not there has been an abuse of discretion statutes providing discovery procedures should be liberally construed. (Smith, supra; Harabedian, supra.) Nevertheless, the following language from Ryan v. Superior Court, supra, 186 Cal.App.2d 813, 816-817, 9 Cal.Rptr. 147 and quoted in West Pico Furniture Co. of Los Angeles v. Superior Court, supra, 56 Cal.2d 407, 415, 15 Cal.Rptr. 119, 122, 364, P.2d 295, is pertinent to the case at bench: 'One of the prime purposes of the Discovery Act is to expedite the trial of the action. This purpose will be defeated if appellate courts entertain petitions for prerogative writs by which a review of the orders of trial courts in discovery proceedings are sought and which do not clearly demonstrate an abuse of discretion by the trial court where discovery is denied, or a violation of privilege or of he provisions of section 19 of article I of the Constitution of this state where discovery is granted. This court will hereafter refuse to entertain petitions for prerogative writs in discovery matters which do not allege facts which would entitle the petitioner to the relief sought under the principles we have set forth.'

With these principles in mind, we turn to the two orders and the disputes arising therefrom.

1. The interrogatories.

Petitioner moved for an order requiring Maccon to file further answers to interrogatories numbers 4, 5, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 33, 33(a), 33(b), 33(c) and 37. Its motion was supported by the declaration of its counsel. Maccon filed no affidavits or declarations in opposition and the motion was submitted on the declaration of petitioner. The court granted the motion as to numbers 33(a) and 37 and denied it as to the rest.

Interrogatory 4 reads as follows: 'Describe fully all books and records of this defendant and state the name and address of the present custodian and whether you will make them available to plaintiff without court order.' Maccon's answer thereto is: 'Objected to on the ground that the information called for is so general as to include matters irrelevant to the subject matter of this action and as to also be oppressive.'

Interrogatories propounded under section 2030 'may relate to any matters which can be inquired into under subdivision (b) of Section 2016 * * *.' (§ 2030, subd. (b).) Therefore they can be propounded 'regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party, including 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.' (Emphasis added.) (§ 2016, subd. (b).)

It is obvious that petitioner's request for a description of Maccon's books and records seeks information 'reasonably calculated to lead to the discovery of admissible evidence.' (§ 2016, subd. (b).) Such a description will place petitioner in a position to call for the production of such books and records either by appropriate motion (§ 2031) or through the issuance of a subpoena duces tecum (§ 1985). It is to be noted that interrogatory 4 of course does not require the production of the books and records in...