Peck's Liquors, Inc. v. Superior Court In and For San Francisco County

• Decision Date: 01 November 1963
• Citation: 221 Cal.App.2d 772,34 Cal.Rptr. 735
• Court: California Court of Appeals Court of Appeals
• Parties: PECK'S LIQUORS, INC., Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN FRANCISCO, Respondent, George J. KAPLANIS, doing business as Mr. K's, Real Party in Interest. Civ. 21404.

Page 735

34 Cal.Rptr. 735

221 Cal.App.2d 772

PECK'S LIQUORS, INC., Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN FRANCISCO, Respondent, George J. KAPLANIS, doing business as Mr. K's, Real Party in Interest.

Civ. 21404.

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

Nov. 1, 1963.

Hearing Denied Dec. 30, 1963.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, San Francisco, for petitioner.

Irvin Goldstein, San Francisco, for real party in interest George J. Kaplanis.

BRAY, Presiding Justice.

Petition for writ of prohibition, mandamus, certiorari, or other writ, seeking to prohibit the superior court from enforcing an order requiring answers to certain questions in the taking of depositions.

QUESTIONS PRESENTED.

1. Is the petition proper?

2. Are petitioner's witnesses subject to prosecution under the Alcoholic Beverage Control Act and therefore justified in refusing to answer on the ground of possible self-incrimination? This requires a determination of whether selling alcoholic beverages at less than the listed price is a crime.

RECORD.

George J. Kaplanis, real party in interest, commenced an action in the San Francisco Superior Court against Peck's Liquors, Inc., in which in his amended complaint he charged the latter under chapter 10 of the Alcoholic Beverage Control Act (Bus. & Prof.Code, §§ 24749-24757) with damaging him by selling alcoholic beverages at retail at less than the applicable fair trade prices and demanded judgment for $50,000 and additional sums after an accounting. Defendant answered, denying the material allegations of the amended complaint. Thereafter the deposition of Maurice T. Peck, the executive vice president and secretary-treasurer of Peck's Liquors, and the depositions of certain named employees were taken. During the course of these depositions the witnesses refused to answer certain questions on the ground that the answers to said questions were incriminating or might tend to incriminate them. Thereupon plaintiff moved the superior court for an order compelling said witnesses to answer said questions. That court determined that the answers to said questions could not be incriminating and ordered the witnesses to answer. This proceeding is brought to prevent the enforcement of said order.

1. THE PETITION IS PROPER.

The petition prays for certiorari, prohibition, mandamus or other appropriate writ. When a pleader is in doubt as to the type of writ he should seek it is proper to state his prayer in the alternative form, as petitioner has done here. (3 Witkin, Cal.Procedure, § 71, p. 2567.) '[T]he cases uniformly follow the modern principle of pleading that neither mislabeling nor a defective prayer will bar relief justified by proper allegations and proof.' (Idem, § 71, p. 2568; see also § 72, pp. 2568-2569.)

When, in discovery proceedings, the trial court issues its order requiring answers to questions propounded, a petition for writ of prohibition is a proper remedy by which a petitioner may seek review of the propriety of that order. (Oceanside Union School Dist. of San Diego County v. Superior Court, 1962), 58 Cal.2d 180, 185, 23 Cal.Rptr. 375, 373 P.2d 439.)

When a party seeks to gain information from a witness by way of deposition, the deponent need not give out any privileged information. (Code Civ.Proc. § 2016, subd. (b).) If the witness is asked any question the answer to which may tend to incriminate him, the answer is privileged and may not be inquired into. (Cal.Const., art. I, § 13.) Therefore, if the trial court issues an order compelling a witness to answer an allegedly incriminating question, the propriety of that order may be reviewed upon application for a writ of prohibition, the same as if the court ordered the witness to give answers which would violate the attorney-client privilege.

2. INCRIMINATION.

It is conceded that the determination of the right to compel the answers rests upon the decision of two issues presented to the trial court and to this court, namely: (a) Is the sale of alcoholic beverages at less than the applicable listed prices a crime? (b) Is a witness exempt under the constitutional provision from testifying to an offense which, as to him, is barred by the statute of limitations?

(b) Statute of Limitations.

Answering the second question first, it is clear that if the offense or offenses as to which the answers of a witness might incriminate him, is or are barred by the statute of limitations, he may not refuse to answer on the ground of possible incrimination. 'If, at the time of the transactions respecting which his testimony is sought, the acts themselves did not constitute an offense; or if, at the time of giving the testimony, the acts are no longer punishable; if the statute creating the offense has been repealed; if the witness has been tried for the offense and acquitted, or, if convicted, has satisfied the sentence of the law; if the offense is barred by the statute of limitations, and there is no pending prosecution against the witness,--he cannot claim any privilege under this provision of the constitution, since his testimony could not be used against him in any criminal case against himself, and consequently he is not compelled to be a witness 'against himself." (Ex parte Cohen (1894) 104 Cal. 524, 528, 38 P. 364, 365, 26 L.R.A. 423, emphasis added; see also Rebstock v. Superior Court (1905) 146 Cal. 308, 313, 80 P. 65; People v. McCormick (1951) 102 Cal.App.2d Supp. 954, 963, 228 P.2d 349; and Brown v. Walker (1896) 161 U.S. 591, 598, 16 S.Ct. 644, 647, 40 L.Ed. 819, where the court states, '* * * if a prosecution for a crime, concerning which the witness is interrogated, is barred by the statute of limitations, he is compellable to answer. [Citations.]')

The violations of the Alcoholic Beverage Control Act charged in plaintiff's complaint are alleged to have occurred from December 22, 1959, to April 3, 1962. This action was filed April 12, 1962. Petitioner contends that the acts with which it is charged could be violations of sections 24750-24757, Business and Professions Code, and that such violations would constitute misdemeanors. (Bus. & Prof.Code, § 25617.) If Business and Professions Code, section 24206 applies, the statutory limitation for violation of any of those sections is one year. Real party in interest contends that the violations concerning which he desires to interrogate petitioner's witnesses are not criminal offenses under the Alcoholic Beverage Control Act.

Assuming the violations would constitute misdemeanors, petitioner's witnesses' protection against incriminating answers could only apply to acts occurring within one year of the time when the individuals are called upon to answer. As more than one year has elapsed since the date of the last charged violation, the statute of limitations has run as to any possible misdemeanor charges, and the witnesses therefore can be compelled to answer as to acts which might constitute misdemeanors. However, petitioner contends that the witnesses could be prosecuted under section 182, Penal Code, for conspiracy to commit a crime, which would constitute a felony, the limitation for which would be three years. Therefore, they could not be required to answer questions concerning any acts occurring within three years of their answering. This contention requires our determination of the question of whether the charged violations constitute misdemeanors which could be a basis for a charge under section 182, subdivision 1, Penal Code (conspiracy to commit a crime) and under subdivision 5 (conspiracy to commit an act injurious to public morals).

(a) Selling at less than listed prices.

This brings us to the first question, namely, is the selling of alcoholic beverages at less than the applicable listed prices a crime?

Section 23001, Business and Professions Code ¹ as amended in 1953, provides: 'This division is an exercise of the police powers of the State for the protection of the safety, welfare, health, peace, and morals of the people of the State, to eliminate the evils of unlicensed and unlawful manufacture, selling, and disposing of alcoholic beverages, and to promote temperance in the use and consumption of alcoholic beverages. It is hereby declared that the subject matter of this division involves in the highest degree the economic, social, and moral well-being and the safety of the State, and of all its people. All provisions of this division shall be liberally construed for the accomplishment of these purposes.'

Section 24749, adopted in 1961, provides: 'It is the declared policy of the State that it is necessary to regulate and control the manufacture, sale, and distribution of alcoholic beverages within this State for the purpose of fostering and promoting temperance in their consumption and respect for and obedience to the law. In order to eliminate price wars which unduly stimulate the sale and consumption of alcoholic beverages and disrupt the orderly sale and distribution thereof, it is hereby declared as the policy of this State that the sale of alcoholic beverages should be subjected to certain restrictions and regulations. The necessity for the enactment of provisions of this chapter is, therefore, declared as a matter of legislative determination.'

Section 24750 reads: 'No contract relating to the sale or resale of any alcoholic beverage which bears, or the label or container of which bears, the trade-mark, brand, or name of the producer or owner of the alcoholic beverage and which is in fair and open competition with alcoholic beverages of the same general class produced by others violates any law of this State by reason of either of the following provisions which may be contained in such contract: (a) That the buyer will not resell the alcoholic beverage except at the price stipulated by the vendor. (b) That the producer or vendee of the alcoholic...