Volkswagenwerk Aktiengesellschaft v. Superior Court

• Decision Date: 18 July 1973
• Citation: 109 Cal.Rptr. 219,33 Cal.App.3d 503
• Court: California Court of Appeals Court of Appeals
• Parties: VOLKSWAGENWERK AKTIENGESELLSCHAFT, a German corporation, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SACRAMENTO, Respondent; Victor Kirk GORDEN and E. E. Gorden, Real Parties in Interest. Civ. 13713.

Page 219

109 Cal.Rptr. 219

33 Cal.App.3d 503

VOLKSWAGENWERK AKTIENGESELLSCHAFT, a German corporation, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SACRAMENTO, Respondent;

Victor Kirk GORDEN and E. E. Gorden, Real Parties in Interest.

Civ. 13713.

Court of Appeal, Third District, California.

July 18, 1973.

Hearing Denied Sept. 26, 1973.

Carroll, Burdick & McDonough, San Francisco, for petitioner.

Rust & Mills, Sacramento, for real parties in interest.

FRIEDMAN, Associate Justice.

Plaintiffs Gorden, who are real parties in interest here, filed a personal injury action against Volkswagenwerk Aktiengesellschaft (VWAG), a German corporation, alleging defective design and manufacture of a 1966 Volkswagen automobile. Plaintiffs moved for two discovery orders: one, appointing a commissioner to take the depositions of seven Volkswagen officials or employees at Wolfsburg, Germany; the other, permitting plaintiffs to inspect and take pictures of certain departments of the Volkswagen manufacturing plant. Both proposed orders declared that refusal to comply would impel the Sacramento superior court to impose sanctions on VWAG.

In resisting these motions, VWAG presented to the superior court an aidememoire from the Embassy of the Federal Republic of Germany, stating that the proposed orders would constitute an encroachment on German sovereign rights; declaring that there would be 'no hesitation' to the interrogation of witnesses in Germany under 'proper letters rogatory through the normal channels . . ..'

Accompanying the aide-memoire was a memorandum prepared by an expert in German law attached to the German Consulate in New York City, declaring that the threat of compulsion to force activities in Germany without permission of the German authorities would violate German sovereign and international law; that no treaty permitted depositions in Germany under the authority of a commission issued by an American court. A third document was a letter from the United States State Department to the superior court expressing its support for the position taken by the German Embassy and offering its own services in transmitting letters rogatory to the German authorities as provided by federal law. (28 U.S.C. § 1781.)

Despite these representations, the superior court on September 29, 1972, issued the discovery orders sought by plaintiffs. VWAG filed in this court a petition for writ of mandate and/or prohibition to stay and vacate these orders. This court issued a stay and an order to show cause, setting the matter for hearing on March 21, 1973. On March 9, at plaintiffs' request, the superior court entered an order purporting to 'rescind' its discovery orders of September 29. Plaintiffs then filed a return, contending that the matter before us had become moot. VWAG has requested that we retain and decide the case, arguing that it needs protection against the expenses entailed by a repetition of plaintiffs' efforts and that plaintiffs' attorneys are pursuing similar efforts in a products liability action against VWAG in another country.

It is questionable whether a respondent court or a real party in interest may demolish the subject matter of an extraordinary writ proceeding following the reviewing court's order to show cause or alternative writ. (See 5 Witkin, California Procedure (2d ed. 1971) p. 3922.) The superior court's jurisdiction to order 'rescission' is not crucial, because the discovery orders of September 29 were erroneous.

The superior court was faced with requests for two kinds of discovery in a foreign nation: depositions of witnesses, a matter regulated--to the extent that California law may do so--by subdivision (b) of section 2018, Code of Civil Procedure, and inspection of property under section 2031 of the same code.

The former statute authorizes depositions in a foreign country before designated diplomatic officials or before a person appointed by commission or under letters rogatory. It declares that the commission may designate the person by name or title 'and letters rogatory may be addressed 'to the appropriate judicial authority in (here name the country)'.'

Section 2031 provides that a court may order any party to permit entry upon designated land or other property in his control for the purpose of inspecting or photographing the property or any designated object or operation thereon. It declares that the court may 'prescribe such terms and conditions as are just.'

A commission, of course, authorizes a designated individual to take the deposition of a named witness. A letter rogatory is a judicial request addressed to a foreign court that a witness be examined within the latter's territorial jurisdiction by written interrogatories or, if the foreign court permits, by oral interrogatories. (Ballentine's Law Dictionary (3d ed. 1969) pp. 726--727.) An important distinction is that the commission is entirely under control of the court issuing it; as to the letter rogatory, the procedure is under the control of the foreign tribunal whose assistance is sought in the administration of justice. (23 Am.Jur.2d, Depositions and Discovery, § 23, p. 371.) The federal statute mentioned earlier (28 U.S.C. § 1781) authorizes the State Department to act as a transmission channel for letters rogatory between American and foreign courts.

A foreign corporation's amenability to local suit does not signal automatic subjection of its internal affairs to the courts of the forum, because the latter have no jurisdiction over persons or property outside their territory. (Coopman v. Superior Court, 237 Cal.App.2d 656, 661--662, 47 Cal.Rptr. 131.) International discovery...