People v. West Coast Shows, Inc.

• Citation: 89 Cal.Rptr. 290,10 Cal.App.3d 462
• Decision Date: 12 August 1970
• Docket Number: B-JAN
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. WEST COAST SHOWS, INC., Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v.AMUSEMENT CORPORATION, Defendant and Appellant. Civ. 26942, 26943.

Page 290

89 Cal.Rptr. 290

10 Cal.App.3d 462

PEOPLE of the State of California, Plaintiff and Respondent, v. WEST COAST SHOWS, INC., Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. B-JAN AMUSEMENT CORPORATION, Defendant and Appellant.

Civ. 26942, 26943.

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

Aug. 12, 1970.

Charles Bagby, San Francisco, for appellant West Coast Shows, inc.

Hersh & Hadfield, James D. Hadfield, San Francisco, for appellant B--Jan Amusement Corp.

Thomas C. Lynch, Atty. Gen., Wallace Howland, Asst. Atty. Gen., Robert E. Murphy, Michael I. Spiegel, Carole A. Kornblum, Deputy Attys. Gen., San Francisco, for respondent; Harold J. Tomin, San Francisco, of counsel.

ELKINGTON, Associate Justice.

In 1967 the Attorney General as head of the State Department of Justice (Gov.Code, § 15000) and as permitted by Government Code sections 11180 ¹ and 15006, ² commenced an investigation of 'Anti-competitive and/or fraudulent activities in the carnival industry in the State of California.' (Hereafter all statutory citations will, unless specially noted, be to Government Code.)

Among the subjects of the investigation were appellants B--Jan Amusement Corporation and West Coast Shows, Incorporated. Pursuant to section 11181 ³ the Attorney General caused to be served upon each of them a subpoena duces tecum directing production of certain designated documents, books, records, and papers. The service was effected by hand delivery to Robert H. Cohn who was president of both corporations. The corporations failed to appear at the designated time and place. This resulted in ex parte applications to the superior court under sections 11186, ⁴ 11187, ⁵ and 11188, ⁶ by which the corporations were ordered to show cause why they should not be required to conform to the demands of the subpoenas duces tecum. Service of the orders to show cause was made on Mr. Cohn as president of the corporations, but again they failed to respond. This resulted in the entry of orders on December 22, 1967, directing each corporation to 'appear before the Attorney General of the State of California or his duly authorized representative at Room 6000 State Building, San Francisco, California, on the 8th day of January, 1968, at the hour of 10:00 a.m. or at such other time and place as may be mutually agreed upon prior to January 8, 1968, then and there to produce the documents, books, records, papers and other items designated in Exhibit 'A' to the Subpoena Duces Tecum.' These are the orders from which the corporations have appealed. The appeals have been consolidated for hearing and disposition.

From the record and briefs before us it appears that the appeals must be dismissed for the reason that they are now moot, the subject orders having been set aside by the superior court.

Following entry of the orders of December 22, 1967, notices of appeal were filed therefrom on February 9, 1968. Thereafter in each proceeding and on March 18, 1968, the superior court found that the orders of December 22, 1967, 'compelling (appellants) to attend and produce certain documents before the Attorney General of the State of California (were) improperly issued and therefore unenforceable in that neither the record of this proceeding, as of December 22, 1967, nor the order(s) of this court of December 22, 1967, recited proper service of the Order(s) to Show Cause and related documents on which the December 22, 1967 order(§ are) based.' It was thereupon 'ORDERED, ADJUDGED AND DECREED * * * that the order(s) of this court of December 22, 1967, having been improperly issued, (are) set aside and without further effect. This order is entered without prejudice to petitioner herein applying to this court for * * * new order(s) compelling production of any documents previously subpoenaed herein.'

The above described March 18, 1968 orders were entered as a result of the successful insistence of counsel for appellants' president Robert H. Cohn (who are counsel for appellants on this appeal) on contempt proceedings held February 2 and 9, 1968, that the December 22, 1967 orders were beyond the court's jurisdiction and therefore void and unenforceable.

The contentions were based upon the absence from the court's records, at the time the orders were made, of any proof of service of the antecedent orders to show cause (required by § 11188, see fn. 6, Ante) upon the subject corporations.

On these appeals, and for the same reasons urged in the superior court on Mr. Cohn's contempt proceedings, appellants insist that the appealed from orders of December 22, 1967, were beyond the superior court's jurisdiction and therefore void and unenforceable.

The above described orders of March 18, 1968, setting aside the orders here under appeal, are now final. Obviously then, appellants are in no way 'aggrieved' by the earlier orders and their appeals have become moot. One who is not aggrieved by a decision of the lower court has no right of appeal therefrom. (Code Civ.Proc., § 902, formerly § 938; Radunich v. Basso, 235 Cal.App.2d 826, 829--830, 45 Cal.Rptr. 824; Danielson v. Stokes, 214 Cal.App.2d 234, 237, 29 Cal.Rptr. 489; Lamb v. Belt Casualty Co., 3 Cal.App.2d 624, 634, 40 P.2d 311.) And of course an appeal which has become moot is subject to dismissal. (Paul v. Milk Depots, Inc., 62 Cal.2d 129, 132, 41 Cal.Rptr. 468, 396 P.2d 924.)

Nevertheless, appellants contend that the March 18, 1968 orders 'setting aside' the orders which are the subject of this appeal were invalid because of Code of Civil Procedure section 946 (since reenacted in substance as Code Civ.Proc. § 916) which stayed 'further proceedings in the court below upon the order appealed from.' But the rule of former Code of Civil Procedure section 946 is subject to this well recognized exception: '(A) court may set aside a void order at any time. An appeal will not prevent the court from at any time lopping off what has been termed a dead limb on the judicial tree--a void order.' (MacMillan Petroleum Corp. v. Griffin, 99 Cal.App.2d 523, 533, 222 P.2d 69, 75; see also Roberts v. Roberts, 241 Cal.App.2d 93, 98--99, 50 Cal.Rptr. 408; People v. Blume, 183 Cal.App.2d 474, 477--478, 7 Cal.Rptr. 16; Pacific Hardware & Steel Co. v. Cheim, 169 Cal.App.2d 339, 343--344, 337 P.2d 508; Batte v. Bandy, 165 Cal.App.2d 527, 538, 332 P.2d 439; Harris v. Board of Education, 152 Cal.App.2d 677, 680--681, 313 P.2d 212.)

"It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion at any time after its entry, by the court which rendered the judgment or made the order. * * *" (Hayashi v. Lorenz, 42 Cal.2d 848, 851, 271 P.2d 18, 19.) It may be set aside on the court's own motion (Montgomery v. Norman, 120 Cal.App.2d 855, 858, 262 P.2d 360), and by a judge other than the one who made it (Myers v. Washington, 211 Cal.App.2d 767, 771, 27 Cal.Rptr. 778; Ross v. Murphy, 113 Cal.App.2d 453, 455, 248 P.2d 122).

We are unimpressed by appellants' argument that although the orders here under appeal are in fact void, nevertheless in determining the validity of the appeals the same orders must be deemed valid. As was said in Alexander v. Hammarberg, 103 Cal.App.2d 872, 879, 230 P.2d 399, 404, 'These two positions are entirely inconsistent. The courts will not recognize nor tolerate such tactics. A party may not thus 'blow hot and cold. " (See also Kirk v. Rutherford, 137 Cal.App.2d 681, 683, 290 P.2d 883; Schulze v. Schulze, 121 Cal.App.2d 75, 83, 262 P.2d 646; Conlin v. Southern Pacific R.R. Co., 40 Cal.App. 743, 747, 182 P. 71.)

In their briefs appellants make a broad constitutional attack on the pertinent provisions of the Government Code and the manner in which the Attorney General has attempted to give them effect. All parties to the appeal appear to wish a decision on these questions. While such wishes are not necessarily controlling where an appeal is subject to dismissal, it appears to us that such a decision on the issues raised would here be in the public interest. The Attorney General's investigation of the carnival industry has now been stymied for almost three years. Another attempt to subpoena appellants' records has been held up in the superior court pending a decision on the constitutional questions here raised. If the instant appeal is dismissed without consideration of its issues, similar proceedings and similar appeals will undoubtedly follow with consequent additional delays.

It is now established law that where, as in the cases at bench, issues on appeal affect the general public interest and the future rights of the parties, and there is reasonable probability that the same questions will again be litigated and appealed, an appellate court may, although the appeal be subject to dismissal, nevertheless adjudicate the issues involved. (See Eye Dog Foundation v. State Board, 67 Cal.2d 536, 542, 63 Cal.Rptr. 21, 432 P.2d 717; County of Madera v. Gendron, 59 Cal.2d 798, 804, 31 Cal.Rptr. 302, 382 P.2d 342; DiGiorgio Fruit Corp. v. Dept. of Employment, 56 Cal.2d 54, 58--59, 13 Cal.Rptr. 663, 362 P.2d 487; Dept. of Agriculture v. Tide Oil Co., 269 Cal.App.2d 145, 150--151, 74 Cal.Rptr. 799; Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 749, 300 P.2d 163; Rattray v. Scudder, 67 Cal.App.2d 123, 127--128, 153 P.2d 433.)

We therefore choose to pass upon such of the issues raised by appellants as are likely to be of future recurrence.

The Attorney General did not, in connection with the issuance and service of the subject section 11181 subpoena duces tecum, make the 'good cause' showing, i.e., the relevancy and materiality of the matter sought to be produced, by affidavit as provided in Code of Civil Procedure sections 1985 ⁷ and 2036. ⁸ Appellants contend that this is a Fourth Amendment deficiency giving to the subject process the...