Superior Ins. Co. v. Superior Court In and For Los Angeles County

• Decision Date: 25 September 1951
• Citation: 37 Cal.2d 749,235 P.2d 833
• Court: California Supreme Court
• Parties: . L. A. 21924. Supreme Court of California, in Bank

Page 833

235 P.2d 833

37 Cal.2d 749

SUPERIOR INS. CO. v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

L. A. 21924.

Supreme Court of California, in Bank.

Sept. 25, 1951.

Rehearing Denied Oct. 22, 1951.

Joseph W. Jarrett and Robert L. Moore, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel, William E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

Belli, Ashe & Pinney, San Francisco, as Amici Curiae on behalf of respondent and real party in interest.

Paul Leiter, Beverly Hills, for real party in interest.

SCHAUER, Justice.

Petitioners seek mandamus ¹ to compel respondent superior court to vacate an order for perpetuation of testimony and to quash a subpoena duces tecum issued in connection therewith. We have concluded that the testimony and the documents sought are within the scope of the statutory proceedings for perpetuation of testimony, and that the relief asked should be denied.

Sally Hays, the real party in interest, filed in respondent court an application for perpetuation of testimony under sections 2083 to 2089 of the Code of Civil Procedure, in which she alleges: She expects to be a party to an action in respondent court against Paul Witten and Superior Insurance Company (petitioners herein) to enforce payment of a judgment which she expects will be rendered in her favor and against Witten in an action pending in such court against Witten and others for personal injuries arising out of an automobile accident; the facts expected to be proved (in the deposition) are the existence of automobile casualty insurance contracts insuring Witten against liability for personal injuries and property damage and the provisions of the insurance policies, including the effective dates and the amounts of insurance. The superior court granted the application and ordered the taking of the depositions of Witten and one F. O. Hoffman. Hoffman is president of Superior Insurance Agency, Inc., the sole agent of petitioner Superior Insurance Company, a Texas corporation, for the writing of certain types of casualty insurance in this state; he is also the agent appointed by the petitioner company for the service of process in California. The court also ordered the issuance of subpoenas duces tecum requiring Written to produce all liability policies insuring him on the date of the accident together with receipts for premiums and notices or correspondence pertaining to the effective periods of such policies; and requiring Hoffman to produce 'all policies of insurance issued to' and covering Witten 'for liability for personal injury and property damage in effect on' the date of the accident, 'together with all records of receipts for premiums paid by * * * Witten pertaining to said policies and all records and correspondence pertaining to the effective dates of said policies.'

Petitioners moved in respondent court to quash the subpoenas and to vacate the order for perpetuation of testimony, their motion was denied, and Witten and Hoffman appeared for the taking of their depositions. At the deposition Hoffman testified that Superior Insurance Company had issued a policy of liability insurance covering Witten, which was in effect on the date of the accident; that 'Our investigation has revealed no policy defenses,' but that he is not an officer of the insurance company and did not have authority to bind it by a statement that it would pay the limits of the policy and would not interpose any defenses, or that it would 'permanently and safely preserve and make available all policies at any time after an action is instituted'; he produced 'specimen policies' which be stated to be 'an accurate and true and correct reproduction of' the policy issued to Witten, with the exception of the amount of policy limits of insurance and the premiums paid; he refused to testify to the policy limits and, except for the specimen policies, did not produce the documents required by the subpoena duces tecum, although he testified that he had such documents and offered to 'file them as a sealed instrument with the Clerk of the Superior Court.' Witten produced no documents and refused to testify as to the policy limits.

Hoffman was thereupon ordered to show cause before the superior court why he should not answer the disputed questions; also pending in the court is an order to show cause why the documents should not be produced. Before the hearings on such orders an alternative writ was issued in this mandamus proceeding. Petitioners ask that the peremptory writ be granted either quashing the subpoenas duces tecum and vacating 'in its entirety' the order for the taking of the depositions 'or in the alternative quashing said subpoenas duces tecum and amending' such order so as to limit the oral examination of the witnesses to testimony as to whether automobile liability insurance was in effect on the date of the accident, whether there are any known policy defenses, whether premiums have been paid, and 'whether said insurance company will satisfy any final judgment rendered against Paul Witten as a result of the personal injury action referred to in said petition to the full contractual indemnity liability under said policy of insurance.'

It is settled that mandamus is a proper remedy if upon the facts shown the challenged order should be vacated or the subpoena quashed. (See Brown v. Superior Court (1949), 34 Cal.2d 559, 561-562, 212 P.2d 878.) Here, as in Demaree v. Superior Court (1937), 10 Cal.2d 99, 103, 73 P.2d 605, it appears that the application to take the deposition meets the requirements of sections 2083-2086 of the Code of Civil Procedure in that it is shown by such application that the applicant expects to be a party to an action; the names of the persons who it is expected will be adverse parties are given as well as the names of the witnesses to be examined; a general outline of the facts expected to be proved is stated; and it further appears that the proof of such facts is desired and necessary to establish matters which it may hereafter become material to establish. In that case it was held that '(I)t must be conceded that the provisions of the policy of insurance are germane to * * * (the applicants') cause and material to their anticipated action, when and if brought. We are of the view, therefore, that the applicants laid a sufficient basis for the issuance of the order providing for the perpetuation of testimony and the production of the insurance policy.' (See also Kutner-Goldstein Co. v. Superior Court (1931), 212 Cal. 341, 345, 298 P. 1001.) Mandate was granted to compel the trial court to issue the subpoena and order the witness to testify with reference to the policy.

Petitioners in the instant case seek to distinguish the Demaree hodling, urging that there the material fact sought to be established was whether the liability insurance policy covered the defendant driver of the automobile involved in the accident as well as the owner thereof, whereas here it is the policy limits that are sought. The attempted distinction is not persuasive. From the opinion in Demaree it appears that the applicants there sought to establish by the testimony of the defendant automobile owner that 'he was in fact insured,' as well as to compel him to produce his policy. The witness appeatred at the deposition but 'failed to produce the policy of insurance as directed in the subpoena duces tecum, and, during the ensuing examination and interrogation, refused to answer certain material questions then and there propounded to him regarding the insurance policy and its provisions. The questions are, with particularity, set forth in the report of the notary. However, * * * (the witness) admitted the existence of the policy and that it had been in his possession two days before the examination.' (Pages 101, 102 of 10 Cal.2d, page 606 of 73 P.2d.) The holding is that the policy itself must be produced and that the witness may not be permitted to confine his testimony to the fact that insurance exists.

The Demaree case specifically rejects the contention that to require the production of the insurance policy 'would result in unreasonable search and seizure, in violation of the provisions of the constitution.' (Page 103 of 10 Cal.2d, page 607 of 73 P.2d.) Pet...