Pacific Auto. Ins. Co. v. Superior Court for Santa Barbara County

• Decision Date: 16 May 1969
• Citation: 273 Cal.App.2d 61,77 Cal.Rptr. 836
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC AUTOMOBILE INSURANCE COMPANY, John C. McIntyre & Tobert Richard Lurie, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA BARBARA, Respondent; SANTA BARBARA COUNTY, a body politic and corporate, and a subdivision of the State of California, Real Party in Interest. Civ. 34022.

Page 836

77 Cal.Rptr. 836

273 Cal.App.2d 61

PACIFIC AUTOMOBILE INSURANCE COMPANY, John C. McIntyre & Tobert Richard Lurie, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA BARBARA, Respondent;

SANTA BARBARA COUNTY, a body politic and corporate, and a subdivision of the State of California, Real Party in Interest.

Civ. 34022.

Court of Appeal, Second District, Division 5, California.

May 16, 1969.

Clausen, Gilliland & Fernandes and Charles E. Finney, Los Angeles, for petitioners.

Dana D. Smith, Acting County Counsel, and Melbourne B. Weddle, Deputy County Counsel, for respondent and real party in interest.

ALARCON, Associate Justice Pro Tem. ^*

This is a proceeding in mandamus to compel the Superior Court of Santa Barbara County to vacate and quash a subpoena duces tecum requiring production of documents in a discovery proceeding.

The proceeding arises out of an action filed by the County of Santa Barbara against petitioners and Raymond Ehrlich for money allegedly expended by the county for medical and related services rendered by the county to Ehrlich when he was injured in an accident with petitioner Lurie. In the first cause of action, based upon intentional interference with contract, it is alleged that Ehrlich is and was a person poor and unable to support himself, and in immediate need of support, and medically indigent with the exception of his assets in the form of a cause of action against Lurie arising from the injury proximately caused by Lurie; that, 'in consideration of the medical services rendered and to be rendered as aforesaid, and in consideration of plaintiff's promise to forbear to sue said Raymond Ehrlich to recover the reasonable value of the care and services rendered to Raymond Ehrlich by plaintiff, as hereinabove stated, Raymond Ehrlich orally agreed that he would not release Tobart Richard Lurie and Does One through Doe Ten without the consent of the plaintiff in order that plaintiff might be reimbursed for medical services rendered as a direct and proximate result of the aforementioned automobile collision' and that in reliance upon said agreement plaintiff did forbear to sue said Ehrlich. It is further alleged that on or about October 28, 1966, Pacific Automobile Insurance Company and John C. McIntyre, and each of them, 'with full knowledge of all of the foregoing facts hereinabove alleged, did fraudulently, knowingly, intentionally and maliciously persuade said Raymond Ehrlich to breach, repudiate and cancel the said oral contract and induce him to execute a release of all claims against Tobert Richard Lurie arising out of the aforementioned automobile collision.' It is further alleged that Ehrlich would not have breached the said oral contract with plaintiff but for the wilful and fraudulent conduct of Pacific Automobile Insurance Company and John C. McIntyre; that Ehrlich did repudiate and cancel the said oral contract with plaintiff; that defendants 'had no legal justification for these acts of interference with the aforementioned contractual relations between the plaintiff and Raymond Ehrlich.'

The county alleges in its second cause of action that petitioners fraudulently conspired with Ehrlich to make a settlement of the latter's personal injury claim and thereby unlawfully interfered with an alleged fiduciary relationship between the county and Ehrlich.

In the third cause of action the county alleges that when it rendered medical services to Ehrlich as required by law it was subrogated to Ehrlich's claim against Lurie for the injuries arising out of the accident.

The county caused a Subpoena Duces Tecum to be issued and served upon petitioner McIntyre requiring him to appear and attend a deposition and to produce all records and correspondence in his possession from himself to Pacific Automobile Insurance Company and from the insurance company to him, for the period of January 18, 1966, the date of the accident, to January 13, 1968, the date of the filing of the complaint, (a) regarding the accident and (b) relating to settlement negotiations with Raymond Ehrlich relative to said automobile collision.

Petitioners moved to quash the subpoena duces tecum, and for a protective order prohibiting the county from causing McIntyre ¹ to produce his investigative file, contending that the declaration filed as an application for the subpoena is defective, in that (a) it does not state facts showing that the documents are material to the issues in the case; (b) it contains an insufficient showing of good cause for the production of the records; (c) it does not specify with particularity the documents to be produced. It was also contended that the documents which were in the possession of the attorneys for the insurance company and McIntyre were protected by the attorney-client privilege. The motions were denied, the trial court stating no grounds for its ruling.

Petitioners' claim that the declaration fails to show materiality to the Issues is based upon language contained in Code of Civil Procedure, section 1985. ² It has been held, however, that when the subpoena power is invoked to secure discovery, the good cause and materiality requirements of Code of Civil Procedure, section 1985, must be governed by discovery standards. (Shivley v. Stewart, 65 Cal.2d 475, 481, 55 Cal.Rptr. 217, 421 P.2d 65.) 'The objective is not merely the discovery of admissible evidence, but also effective preparation for trial. Accordingly, whether discovery is sought by motion under section 2031 or by subpoena under section 1985, it is not necessary to show that the material sought will be admissible in evidence. (Filipoff v. Superior Court, 56 Cal.2d 443, 449, 15 Cal.Rptr. 139, 364 P.2d 315.)' (Associated Brewers Distr. Co. v. Superior Court, 65 Cal.2d 583, 587, 55 Cal.Rptr. 772, 775, 422 P.2d 332, 335.) The county, accordingly, was not required to show the materiality of the requested matter to the Issues involved in the case. Petitioners made no claim of the non-relevancy of the documents to the Subject matter of the pending action. In the absence of specific objections it must be assumed they were. ²

However, it was further incumbent upon the county to make a showing of good cause. Section 1985 ³ imposes the requirement of an affidavit 'showing good cause for the production of the matters and things described in such subpoena.' Section 2036 provides: '(a) A party required to show 'good cause' to obtain discovery under any provisions of Chapter 2 (commencing with Section 1985) or of Article 3 (commencing with Section 2016) of Chapter 3 of this title, Shall show specific facts justifying discovery and mere proof of the relevance of the information sought to the subject matter of the action shall not be sufficient. (b) The showing set forth in sub-division (a) of this section and any showing made in opposition thereto shall be made in the trial court prior to that court's determination of the matter.' (Emphasis added.)

Construing this section, the Supreme Court in Associated Brewers Distr. Co. v. Superior Court, Supra, states (pp. 586--587, 55 Cal.Rptr. p. 774, 422 P.2d p. 334): 'Before section 2036 was enacted we held in Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 388, 15 Cal.Rptr. 90, 364 P.2d 266, 283, that 'the good cause which must be shown should be such that it will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary.' The trial court had discretion to determine that relevance to the subject matter alone constituted good cause. The history of section 2036 indicates that the legislative purpose was to prevent abuse of discovery by requiring the moving party to show that the documents sought to be produced for inspection will aid in his case. (See, Code Civ. Proc. sec. 2019, subd. (d).) The Legislature did not provide that the documents must be admissible in evidence, but only that the trial court be afforded the factual data necessary to make an informed ruling on the issues of good cause. It left to the courts the determination of what specific facts in addition to showing 'of relevance of the information sought to the subject matter of the action' should be required to show 'good cause.' * * * The court's determination necessarily depends on the facts and issues of the particular case.'

In the Declaration of the Deputy County Counsel filed in support of the Subpoena Duces Tecum it is alleged that 'Declarant is informed and believes, and upon such information and belief alleges, that John C. McIntyre has in his possession or under his control certain documents which are relevant and material to the complaint of Santa Barbara County herein, for the intentional interference with the contractual relationship of the County of Santa Barbara and Raymond Ehrlich.' Then follows a description of the material to be produced as above set forth. Declarant then states: 'At various stages in this controversy, the plaintiff has requested discovery and inspection of the records involving the collision between Tobert Richard Lurie and pedestrian Raymond Ehrlich on January 18, 1966, which records are pertinent to the issues in the intentional interference with the contractual relationship of the Pacific Automobile Insurance Company. At all times herein mentioned such right of inspection has been refused by said defendants or so narrowly circumscribed as to preclude the proper preparation of plaintiff's case for trial. . . . Each and all of the documents and records of Pacific Automobile Insurance Company and John C. McIntyre, listed above constitute and contain evidence relevant and material to the subject matter involved in this action, and said documents and records are not privileged.'

It will be noted that in this declaration, the statement that McIntyre has the requested material in his possession or under his control is based only upon information and belief without any supporting...