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


No. 19845.

Decided: May 31, 1961

Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, Robert A. Seligson, San Francisco, of counsel, for petitioner. Jay A. Darwin, Kenneth W. Rosenthal, San Francisco, for plaintiffs and real parties in interest.

Petitioner seeks a writ of prohibition or of mandate to restrain respondent court from enforcing an order requiring petitioner to permit the real parties in interest to inspect and copy documents.

The matter arises in this way: The real parties in interest filed an action against petitioner in which they allege, in substance, that one Gage was insured by petitioner against liability in the operation of his automobile; that Gage, while driving his car, collided with a car in which real parties were riding; that they were injured, and recovered separate judgments against Gage; that petitioner was notified of the accident and participated in settlement negotiations; that demand has been made that petitioner pay the judgments, which has been refused. Petitioner answered, admitting that it insured Gage, that there was an accident, and that real parties filed their actions against Gage. It denies the judgments for want of information or belief. This is an admission, the judgments being matters of record. State Ath. Comm. v. Massachusetts Bonding & Ins. Co., 46 Cal.App.2d 823, 828, 117 P.2d 75. Petitioner admits that it was notified and attempted to investigate, but then alleges that Gage concealed himself, failed to forward summons and complaint to petitioner, and wilfully failed and refused to cooperate in defending the actions.

Real parties then served a notice of motion for an order permitting inspection and copying of documents. This is signed by their attorney, but not verified or accompanied by any affidavit. It reads, in part: ‘* * * plaintiffs will move the Court for an order requiring defendant to produce and to permit plaintiffs to inspect and copy all records, correspondence, documents, photographs, memoranda, notes, statements and any and all matters pertaining to the file of its insured, Marion Gage, and more particularly, dealing with Claim No. 05–5085–891, Esther Echevarria and Elisa Hernandez against said insured, for an accident which occurred on or about the 5th day of March, 1958.

‘Said motion will be made on the ground that all of the aforementioned documents are material evidence relative to the allegations of plaintiff's complaint in the above matter, or may reasonably lead to the discovery of material evidence relevant to said allegations; that all of said documents are in the possession and control of the defendants; that plaintiffs do not have copies thereof, and they are not available to them, nor have they been available to them since the occurrences sued upon herein; and that the inspection and copying of said documents is necessary in order that plaintiffs may properly prepare their case for trial.

‘Said motion will be based upon this notice, the memorandum of Points and Authorities attached, and the records and files of the above-entitled cause.’

Petitioner filed a memorandum in opposition, asserting that no sufficient showing of good cause was made, and citing Steele v. Superior Court, Cal.App., 9 Cal.Rptr. 14 (hearing granted by Supreme Court) and Adams v. Superior Court, 49 Cal.2d 427, 317 P.2d 983. It also filed a second memorandum, asserting that it is ‘improper * * * to require an insurance carrier to produce its confidential reports and investigation of the accident’ because they are privileged.

The court granted the motion, and its order uses the same language to describe the papers to be produced as the notice of motion, quoted above.

Before this court, petitioner urges that no sufficient showing of good cause was made because no affidavit was filed in support of the motion, and because there is no sufficient identification of the documents or showing that they contain material evidence or that they are admissible in evidence.

The motion was made under Code of Civil Procedure section 2031 the pertinent portion of which reads: ‘(a) Upon motion of any party showing good cause therefor, * * * and subject to the provisions of subdivision (b) of Section 2019 of this code, the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by subdivision (b) of Section 2016 of this code and which are in his possession, custody, or control * * *. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.’

Section 2016, subdivision (b), which defines the scope of depositions, and is referred to as defining the scope of the discovery of documents, provides: ‘[T]he deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. All matters which are privileged against disclosure upon the trial under the law of this State are privileged against disclosure through any discovery procedure. * * *’

And section 2019, subdivision (b), gives the court broad authority to limit or prohibit the disclovery proposed, ‘* * * to protect the party * * * from annoyance, embarrassment, or oppression. * * *’

1. Under the peculiar circumstances of this case, an affidavit was not essential.

Code of Civil Procedure section 2031 requires a showing of ‘good cause.’ Normally, upon a motion, the good cause required should be shown by affidavit, which is the customary manner of presenting facts in support of a motion (Code Civ.Proc. § 2009). It would have been better practice to do so here. However, the notice of motion referred to a particular file, of a particular insured, relating to a particular claim, by number, and to a particular accident. The pleadings were verified, and admitted that petitioner had insured the person named, and that the accident had occurred. A verified pleading is itself an affidavit. Code Civ.Proc. §§ 2003, 2009. There was no attempt by petitioner to deny that the file existed; on the contrary, the opposition to the motion was based upon the assumption that the file does exist. It has been held that, on a motion such as this, the pleadings can be considered. Union Trust Co. of San Diego v. Superior Court, 11 Cal.2d 449, 455, 81 P.2d 150, 118 A.L.R. 259; American Fed. of Musicians v. Superior Court, 150 Cal.App.2d 165, 170, 309 P.2d 874. We think that in the narrow situation before us the decision should not turn upon the lack of an affidavit. Our views, however, should not be taken by counsel as indicating that we will approve so informal a procedure in any other case.

2. The demanded documents are sufficiently identified.

All the authorities indicate that there must be sufficient identification of the papers demanded. The nature of the case and the type of documents requested may make a considerable difference in the identification required. ‘It is apparent that, in reason, all that should be required * * * is that * * * he [the moving party] describe them [the documents desired] with such certainty only as will or should reasonably apprise his legal opponent, or the custodian of such records, or that which may be desired.’ Union Trust Co. v. Superior Court, 11 Cal.2d 449, 458, 81 P.2d 150, 155. This was the rule under former Code of Civil Procedure, section 1000. Surely the rule should be no less liberal under the new discovery act. Cf. Grover v. Superior Court, 161 Cal.App.2d 644, 648, 327 P.2d 212. Petitioner does not seriously contend that it has not been reasonably apprised of that which is desired, and we think that the moving papers, together with the pleadings, are sufficient for that purpose.

3. Materiality or relevancy is not sufficiently shown.

Most of the decisions in this state dealing with this question arose under former Code of Civil Procedure section 1000 which provided for the discovery, on motion, of ‘any document or paper * * * containing evidence relating to the merits of the action, or the defense therein.’ A series of cases has held that the moving party must show that the documents requested contain material evidence, in the narrow sense that they would be admissible in evidence upon the trial of the case. We cite only the two most recent decisions of the Supreme Court: McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 397, 159 P.2d 944; Adams v. Superior Court, 1957, 49 Cal.2d 427, 431, 317 P.2d 983.

We think, however, that it was the obvious intent of the Legislature to broaden the scope of the discovery of documents when it adopted Code of Civil Procedure section 2031. As has been shown, that section expressly refers to section 2016, subdivision (b), and we think that, when the two sections are construed together, as they obviously were intended to be, it must be held that the legislative intent was to permit the discovery and copying of documents containing matter ‘relevant to the subject matter involved’ in the action, and ‘reasonably calculated to lead to the discovery of admissible evidence.’ Code Civ.Proc. § 2016, subd. (b).

Petitioner, however, asserts that such a construction of these sections renders them pro tanto unconstitutional, as authorizing an unreasonable search and seizure in violation of article I, section 19 of our Constitution. It is true that a line of decisions beginning with the landmark case of Ex parte Clarke, 126 Cal. 235, 58 P. 546, 46 L.R.A. 835, holds that section 19 of article I does apply to proceedings in civil actions to compel the production of documents. See, for example, Kullman, Salz & Co. v. Superior Court, 15 Cal.App. 276, 285–286, 114 P. 589; Shell Oil Co. v. Superior Court, 109 Cal.App. 75, 80–81, 292 P. 531; McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d 386, 396, 159 P.2d 944; Adams v. Superior Court, supra, 49 Cal.2d 427, 431, 317 P.2d 983. It is also true that the foregoing cases seem to erect the requirement of showing of materiality (in the strict sense of admissibility in evidence in the case) into a constitutional requirement, and that two decisions of a District Court of Appeal have so construed them: Twin Lock, Inc. v. Superior Court, 171 Cal.App.2d 236, 340 P.2d 748; Steele v. Superior Court, supra, Cal.App., 9 Cal.Rptr. 14 (hearing granted by Supreme Court).

We have grave doubts as to the validity of this construction. To liken a procedure, carefully prescribed by the Legislature, and operating under the authority of the court, upon good cause shown, with the court having the broadest possible powers to protect the party whose papers are sought from abuse of the proceeding (Code Civ.Proc. § 2019, subd. (b)(1)) to an unreasonable search and seizure seems to us to be a mechanistic and, indeed unreasonable construction of article I, section 19, of the Constitution. There is a saying, often repeated, that ‘old process is due process,’ and the analogy of a bill of discovery in equity at once comes to mind. (See the discussion in Union Trust Co. of San Diego v. Superior Court, supra, 11 Cal.2d 449, 459–460, 81 P.2d 150, and the careful and illuminating review of the subject by Mr. Justice Bradley in Boyd v. United States, 116 U.S. 616, 631 ff, 6 S.Ct. 524, 29 L.Ed. 746.) It must be remembered that this is an ordinary civil action; no attempt is being made here to compel petitioner to produce papers to be used against it in a criminal or quasi-criminal proceeding. Certain it is that article I, section 19 did not prohibit the ‘old process' of a bill of discovery. That process has been replaced in this state by the discovery act. We think it equally certain that article I, section 19 did not freeze the precise forms or limits of the old bill of discovery into the Constitution, or so tie the hands of the Legislature that it could not, if it felt that the due administration of justice requires it, broaden discovery of documents to the extent that it has in Code of Civil Procedure, sections 2031 and 2016, subdivision (b). That broadening seems to us to be reasonable, and it must be remembered that article I, section 19 prohibits only what is unreasonable. Cf. Union Trust Co. of San Diego v. Superior Court, supra, 11 Cal.2d 449, 463, 81 P.2d 150; Dowell v. Superior Court, 47 Cal.2d 483, 486, 304 P.2d 1009.

However, because this question was directly decided the other way in Steele, supra, because that case is now pending before the Supreme Court, and because real parties' showing below is insufficient in any event, we do not attempt to decide this question.

The decisions are unanimous that the moving party must show that the demanded papers do contain evidence of the type defined in the statute. We do not think that the Legislature intended to eliminate such a requirement; on the contrary, it required that ‘good cause’ be shown. Surely, in view of the historic rights of persons ‘to be secure in their * * * papers * * *’ (Const. art. I, § 19) this must at least mean a showing that the facts authorizing discovery are present. Here, no such showing was made; all that appears is the bald and unsworn statement of real parties' counsel that ‘all of the * * * documents are material evidence relative to the allegations of plaintiff's complaint * * * or may reasonably lead to the discovery of material evidence relevant to said allegations.’ No case goes so far as to uphold such an allegation, even when under oath, the authorities are all the other way. Such an allegation is a mere conclusion, and worthless for any purpose. McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d 386, 396, 159 P.2d 944; Union Oil Co. of California v. Superior Court, 151 Cal.App.2d 286, 293, 311 P.2d 640; Twin Lock, Inc. v. Superior Court, supra, 171 Cal.App.2d 236, 239, 340 P.2d 748.

We could well infer that the file demanded probably contains some papers that fall within the categories made subject to discovery by the Legislature. It is equally inferable that the file contains many other papers that do not. It is no answer to say that petitioner knows which are which and real parties do not. The law expressly provides a means whereby real parties can find out, by taking appropriate depositions (Code Civ.Proc. § 2016, subd. (b)) or propounding interrogatories (Code Civ.Proc. § 2030, subd. (b)). See McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d 386, 398, 159 P.2d 944; Adams v. Superior Court, 49 Cal.2d 427, 433, 317 P.2d 983; Union Oil Co. of California v. Superior Court, supra, 151 Cal.App.2d 286, 293, 311 P.2d 640.

Let a peremptory writ of prohibition issue as prayed.

DUNIWAY, Justice.

BRAY, P. J., and TOBRINER, J., concur.