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


Civ. 17619.

Decided: April 10, 1950

George I. Devor, Los Angeles, for petitioner. Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent. Loeb & Loeb, and H. F. Birnbaum, Los Angeles, for Union Bank & Trust Co., real party in interest.

This is a proceeding to perpetuate testimony under Section 2084 of the Code of Civil Procedure.

Union Bank and Trust Company of Los Angeles is co-trustee under a trust indenture securing an issue of sinking fund bonds. The Bank accumulated $102,806.76 in the trust estate to retire the bonds. By the terms of the trust, the Bank could purchase outstanding bonds on the open market, or from bond holders on tenders.

Petitioner, among others, tendered bonds for payment. All tenders were refused because the trustee determined that sufficient bonds could be bought on the open market for less than the tenders.

Petitioner sought to take the testimony of the Bank and one of its officers, Mr. Lathrop.

Upon the following averments by affidavit a subpoena duces tecum was ordered:

‘Said Union Bank and Trust Company is the co-trustee under a certain trust indenture. Consolidated Office Buildings Company, a corporation, is the trustor thereunder. Petitioner is the holder of numerous bonds issued under the terms of said indenture and is, therefore, a beneficiary of said trust. As such trustee, said Union Bank and Trust Company has in its possession and maintains records showing:

‘(1) The number of outstanding bonds;

‘(2) Bonds acquired by purchase, or otherwise;

‘(3) Dates of acquisition of bonds;

‘(4) Prices paid for bonds;

‘(5) From whom said bonds were purchased; and

‘(6) Disbursements for counsel and other fees and charges.

‘The petition hereinabove referred to and incorporated by reference, among other things, sets forth: (1) a certain invitation for tenders of bonds made by the co-trustee, (2) the making of said tenders by various persons, including petitioner, (3) the rejection of said tenders by the said co-trustee, and (4) that said rejection by said co-trustee was wrongful and without right. Whether the said rejection was wrongful and without right depends, among other things, upon (a) the terms of the trust indenture, and (b) the prices paid for the bonds, plus all additional costs and expenses in acquiring them. The records of the said co-trustee in its possession and above-described are, therefore, competent and admissible evidence material to the issues.’

The subpoena duces tecum called for ‘all books, documents and records relating to the creation, existence and administration’ of the trust.

The Superior Court, on motion, quashed the subpoena as being improvidently issued, and petitioner here seeks a writ of mandate to compel the issuance thereof. The court also ruled it would be detrimental to Mr. Lathrop's health to testify. Petitioner does not seriously question this ruling as to Mr. Lathrop.

In McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, at page 396, 159 P.2d 944, 950, the rule respecting the issuance of subpoenas duces tecum is well stated: ‘The right to have an inspection of papers and documents in the hands of a party to the action or a third person is governed by different rules from these applying to depositions. A party or witness has a constitutional right to be free from unreasonable searches and seizures, and it is therefore incumbent upon the one seeking an inspection to show clearly that he has a right thereto and that the constitutional guaranties will not be infringed. Hence, the affidavit in support of the demand for inspection must identify the desired books, papers and documents and it must clearly show that they contain competent and admissible evidence which is material to the issues to be tried. The affiant cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material.’

The modern tendency in the administration of justice is to relax the rules relating to the inspection of writings. Thus trials of actions may be expedited and justice be more efficaciously and speedily administered. The applicable rules are to be applied liberally, and the right of inspection encouraged. Milton Kaufmann, Inc. v. Superior Court, 94 Cal.App.2d 8, 210 P.2d 88.

The Bank contends that the evidence is immaterial because as co-trustee it had the right to purchase the bonds for less than the tenders made by petitioner.

The determining facts are to be looked for in the affidavit of petitioner. It is there averred that the rejection of the tenders by the co-trustee was wrongful and without right, and that the petitioner is a beneficiary under the trust.

Under these averments, the petitioner is entitled to all of the Bank's records relative to the trust.

Let the writ of mandate issue, directing the Superior Court to issue its subpoena duces tecum, requiring the Bank to produce for use on deposition all books, documents and records relating to the creation, existence and administration of that certain trust of Consolidated Office Buildings Company, dated as of December 1, 1934, securing income mortgage and collateral trust sinking fund bonds.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.