ALLEE v. KING (1988)

Beau King, a Texas resident, appeals a $2.7 million default judgment entered after the trial court struck his answer for failing to produce the originals of certain documents at trial.  (Code Civ.Proc.,1 § 1989.)   We hold the court had no power to compel King to produce original out-of-state documents at trial, and thus, it could not strike King's answer for failure to do so.   Further, since plaintiffs obtained copies of the requested documents through discovery procedures, and made no motions asserting King failed to comply with the court-ordered discovery, there has been no showing they have been prejudiced by any failure to produce original documents at trial so as to justify any sanction.

FACTUAL AND PROCEDURAL BACKGROUND

In late 1984 and in 1985, plaintiffs requested the production of documents for inspection and copying as part of its pre-trial discovery.  (§ 2016 et seq.)   After obtaining a court order to compel production, plaintiffs inspected and copied the requested documents at King's office in Texas.   No further request for production for inspection and copying or motion to compel was made, although plaintiffs were expressly invited to return to the trial court for further orders if disputes arose.

In September 1986, plaintiffs served notices to produce categories of original documents at trial.   When King resisted, plaintiffs obtained orders compelling production.   The request and order to produce at trial appear to cover only the same documents plaintiffs requested, inspected, and copied during pre-trial discovery.   King vigorously opposed transporting the originals from Texas to San Diego, unsuccessfully seeking relief from this court and the California Supreme Court.

In January 1987, plaintiffs moved to strike King's answer for failing to produce the originals.   After King produced some documents in February 1987, the trial court granted the motion to strike King's answer upon plaintiffs' conclusory representation that he had not produced unspecified key documents pertaining to liability.

We recite the acrimonious procedural background in detail.

Pre-trial Discovery

Plaintiffs, a group of over 100 persons who purchased land in Texas from the Lind–Fitzmaurice Development Corporation (hereafter “Lind”), sued Lind for fraud.   Lind filed a Chapter 11 (reorganization) petition for bankruptcy in Texas;  Jack Webb was appointed trustee for Lind;  and William Turney was appointed as a consultant to Webb.   Plaintiffs named King as a defendant in September 1984, alleging he participated in the sales transactions.   On October 11, 1984, King formed a Texas corporation (Stuart & Hill), of which he is sole shareholder.   Stuart & Hill purchased Lind's assets in a sale approved by the bankruptcy court under the reorganization plan.

Plaintiffs made their first and second discovery requests to produce documents for inspection to King on December 7, 1984 and June 12, 1985.   The documents requested by plaintiffs generally asked for all documents pertaining to the land sales transactions carried out by Lind and various entities and persons allegedly associated with Lind, including King.   Dissatisfied with King's response, plaintiffs obtained an order compelling him to produce.   When King responded all known documents had been produced and certain requested lease agreements did not exist, the motion to produce was denied.

A subpoena duces tecum was issued to the bankruptcy trustee (i.e. trustee Webb and the trustee's attorney), ordering him to produce Lind's documents for inspection in Texas.   The bankruptcy court promptly enjoined plaintiffs' counsel from obtaining documents from its trustee.   However, the documents were later produced and copied by plaintiffs.

In support of a renewed motion to compel King to produce, plaintiffs' counsel stated that when they arrived in Texas to view the documents in possession of the bankruptcy trustee they discovered the documents were actually in the possession of Stuart & Hill, and had been when King was first served with the requests;  that King had not produced all documents in his possession contrary to his representations and still refuses access to these documents;  the bankruptcy trustee and King once shared the office where the documents are located;  the trustee has none of the documents in his possession and they are now and at all relevant times have been in King's possession.

In December 1985, after considering King's response and a letter from King's counsel indicating plaintiffs could come and look at the documents at Stuart & Hill's office, the court ordered inspection and copying of the documents at Stuart & Hill's office be completed within 30 days.   After the requested documents were inspected and copied by plaintiffs at King's Texas office, plaintiffs sought no further discovery relief from the trial court.

Notice to Produce Documents at Trial

On September 11 and 19, 1986, plaintiffs served two notices to produce documents at trial under section 1987.   King objected to the notice to produce on the grounds, inter alia, that the documents had already been produced and were irrelevant.

Plaintiffs then moved for an order to compel production of the original documents at trial.   King opposed the motion, submitting a declaration indicating the cost of moving the 20 cabinets to San Diego would be excessive.   He stated he had complied with all document requests;  the majority of the production occurred at Stuart & Hill's offices in Texas;  the documents produced were the files turned over to King by the bankruptcy court relating to the property sold by Lind;  the documents were primarily contained in about 20 file cabinets at Stuart & Hill's offices;  plaintiffs have had access to the documents since December 1985;  no motions have been brought alleging a deficiency in King's production of the documents;  the documents sought in the notice to produce at trial are those which have been previously produced during discovery;  and transporting the documents to San Diego for an indefinite period would severely restrict the ongoing activities of Stuart & Hill's business of collecting payments from purchasers and paying lien holders.   Further, King argued he was not disputing the documents were material;  he was disputing the production of the originals of documents which had previously been produced;  the originals were not necessary for authentication since under the Evidence Code duplicates could be used;  and no facts had been presented which questioned the sufficiency of the documents which plaintiffs already possessed.

At hearing, plaintiffs' counsel argued:

“[W]e went down there once and Mr. King said he produced everything.   We came back and talked to people and, ‘Oh, sorry.   While you were down there, we didn't produce everything.   There is more stuff.’   So our counsel had to go to Texas to get more stuff.

“We don't know what they failed to produce.   We want them to produce the originals at trial that are relevant to this case.   Our clients, the Court and the jury are entitled to see those documents in their original state.”

In response, King's counsel reiterated they had been producing documents in King's office since last December, and he did not know what plaintiffs' attorneys had and had not inspected, but all documents had been made available and there had been no motion to further compel documents.   Notwithstanding, the court ordered King to produce the originals at trial.

After the trial was trailed to a later date, King asked the court to reconsider its oral ruling and not sign plaintiffs' proposed order, which would have required production of the documents on October 9, 1986.

The court denied King's request for reconsideration and ordered him to produce the documents on October 16, 1986.

King did not produce the documents on October 16, and King's counsel informed the court he intended to seek a writ.   Due to the court's scheduling problems (and not because of King's noncompliance), the trial was continued to November 3, 1986.

On October 21, 1986, King again sought reconsideration on the basis he was not a California resident.   This request was denied, as was the ensuing petition for writ of mandate from this court and the California Supreme Court.

Motion to Strike King's Answer

On January 29, 1987, plaintiffs moved to strike King's answer for failing to comply with the production order.   In its memorandum of points and authorities, plaintiffs, after indicating the bankruptcy court issued an injunction prohibiting plaintiffs from obtaining any documents held by the trustee, asserted as follows:

“Plaintiffs thereafter were limited to reviewing only those documents which both the trustee and Defendant KING approved for review.   Unless Plaintiffs so agreed they risked being held in contempt of court for violating the injunction of the Texas Bankruptcy Court.   Since Plaintiffs were enjoined from obtaining the documents in the State of Texas and because Plaintiffs had depositions and third party document subpoenas outstanding in Texas, they were forced to comply with the orders of the Texas Bankruptcy Court.

“Although Plaintiffs' counsel did go to Texas to inspect and copy the approved documents, all the requested documents were not produced.”  (Italics added.)

At a February 11, 1987 hearing on the motion to strike, King's counsel told the court that after much difficulty with the bankruptcy people, they had obtained the documents and they had arrived in San Diego that morning and were available for copying and authentication, but that there was some pressure to get the originals back to Texas as soon as possible.   The court stated it was inclined to award sanctions against King, but took the motion to strike under submission, instructing plaintiffs to review the records to determine if there was going to be any problem prior to trial.   That same day, King delivered documents to plaintiffs' counsel in eight file cabinets, two cardboard boxes, and a three-ring binder.   One week later two more cardboard boxes filled with additional items were produced.

After examining the documents, plaintiffs' counsel filed a declaration generally stating the documents produced were not responsive to the notices to produce documents and listing the missing categories of documents.²

At a hearing on February 23, 1987, plaintiffs' counsel argued no original books of entry had been produced, which they knew existed, and that none of the documents involving the basic sales activities had been produced which would evidence the wrongful conduct.   King's counsel asserted all original documents were provided.   Plaintiffs' counsel reiterated that defendants were holding unidentified “smoking gun type” documents, and if they wanted to get to a resolution of the case on the merits, they had to turn over the documents.

The court struck King's answer and entered his default noting:

“I've been involved with this case I think for the past two years, and it has always been a constant battle with Mr. King.   I think he has used and abused both counsel—not necessarily present counsel, but certainly other counsel and the system to obfuscate, to delay.   I think that even on the merits his answer should be stricken and default entered and the motion will be granted.”

The court made no findings of prejudice to plaintiffs, and plaintiffs did not contend, nor do they now, that there are specific documents pertinent to this case which they have not inspected and copied.   Nor do they suggest why they will be prejudiced by using copies rather than originals for evidentiary purposes should that become necessary.

Contempt Proceedings

Meanwhile, on February 19, 1987, a hearing was held on plaintiffs' motion to hold King in contempt for failing to comply with the order.   He was not found to be in contempt.

ANALYSIS

It was error to impose sanctions for King's failure to produce out-of-state originals at trial.   We hold the court has no power to compel a party who is not a resident of California to deliver out-of-state documents.   We also hold the sanction was an abuse of discretion since there has been no showing of harm to plaintiffs, who do not deny having copies of the requested documents obtained through pretrial discovery, and who made no motions on the basis of inadequate disclosure during discovery although encouraged by the trial court to seek further motions to compel or sanctions should King fail to comply with its discovery orders.

For purposes of our discussion, we assume plaintiffs made a sufficient showing that King did not produce, in response to the notice to produce documents at trial, all of the requested documents that he had in his possession or control.   Further, we are satisfied there is substantial evidence that King had possession and control over the documents via his position with Stuart & Hill.  (First Nat. City Bank of N.Y. v. Internal Rev. Serv., etc. (2d Cir.1959) 271 F.2d 616, 618.)

A. Territorial limits on the court's power to compel a nonresident to produce documents at trial

 We conclude section 1989 does not authorize the court to compel a nonresident to deliver out-of-state documents.³  Section 1989 states:

“A witness, including a witness specified in subdivision (b) of Section 1987, is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service.”  (Italics added.)

Thus, section 1989 places express geographical limits on the court's power to compel a witness to attend a proceeding in California.

In Twin Lock, Inc. v. Superior Court (1959) 52 Cal.2d 754, 759, 344 P.2d 788, the court stated the word “witness” in section 1989 includes a prospective witness who is a party or agent of a party.   The court issued a writ prohibiting the imposition of sanctions against a corporate plaintiff whose officers, residents of New York, had been sent a notice to attend a deposition in California by the defendants.   After the corporate plaintiff unsuccessfully objected to the notice for the taking of depositions in California and the trial court issued an order for the officers to appear, the defendants moved for sanctions under former section 2034, allowing the striking of a pleading, etc. for failure to appear for a deposition.   In issuing the writ of prohibition, the court noted that section 1989 contains a limitation upon the distance which a court may directly or indirectly compel a witness to travel, based on the “long-established practice of limiting the territorial scope of the powers of a court to compel the attendance of witnesses. ” ⁴  (Twin Lock, Inc. v. Superior Court, supra, 52 Cal.2d at p. 759, 344 P.2d 788, italics added.)   The court rejected the argument that section 1989 does not apply where the attendance of a witness is sought to be compelled indirectly by the imposition of sanctions, instead of by proceeding directly against the witness through contempt.   Rather, the court held under section 1989 the New York officers of the corporate party could not be obliged to attend proceedings in California, and no direct or indirect means could be used to compel them to attend.  (Id. at pp. 758–759, 344 P.2d 788.)

Here, it is conceded King resides in Texas, not California, and that the documents are legitimately housed in Texas.   Thus, King could not be compelled to attend trial via the notice under section 1987, subdivision (b), and it follows that he could not be compelled to bring the documents with him under section 1987, subdivision (c) which is limited by its terms to orders adjunct to those requiring a party's personal presence under subdivision (b).

 Moveover, although under some circumstances a party's acts may constitute consent to a court acting in excess of jurisdiction (see 2 Witkin Cal. Procedure (3d ed. 1985) Jurisdiction, § 267, pp. 665–667), we hold that even though King apparently voluntarily attended the trial, his presence does not confer jurisdiction on the court to oblige him to deliver the out-of-state documents.   Although section 1989 uses the word “witness” and does not refer to documents, it has long been presumed under common law that documents in other states are outside the court's territorial jurisdiction, so that a court will allow the use of copies or other secondary evidence instead of originals.  (See, e.g., Heinz v. Heinz (1946) 73 Cal.App.2d 61, 66, 165 P.2d 967, and cases cited therein.)   The recognition that out-of-state documents are not subject to the court's process is in conformity with the general rule under common law that, absent a statute properly conferring broader powers, the extent of a state's subpoena power and its accompanying subpoena duces tecum power is coterminous with its borders.  (See 97 C.J.S., Witnesses, § 17, p. 367, § 23, p. 375, § 25, p. 380;  81 Am.Jur.2d, Witnesses, § 8, p. 32, § 14, p. 39.)

We briefly trace the common law territorial limits rule to support our conclusion.

The common law state-border limits on the court's subpoena power has been applied to parties, or agents of parties, as well as nonparties.  (See Kentucky Finance Corp. v. Paramount Auto Exchange Corp. (1923) 262 U.S. 544, 43 S.Ct. 636, 67 L.Ed. 1112;  State v. Breidenbach (1945) 246 Wis. 513, 17 N.W.2d 554, 556–557.)   In its application to parties, this territorial limitation is not based on lack of jurisdiction over the person, since personal jurisdiction exists by virtue of the person's status as a party.  (See 2 Witkin Cal. Procedure (3d ed. 1985) Jurisdiction, § 80 et seq., p. 451.)   The rationale for and scope of the rule placing territorial limits on a court's subpoena power has been the subject of judicial disagreement, but appears to be based on various constitutional concerns, such as equal protection of the laws arising from statutory schemes which discriminate between residents and nonresidents (Kentucky Finance Corp. v. Paramount Auto Exchange Corp., supra, 262 U.S. at pp. 550–551, 43 S.Ct. at pp. 638–639;  State v. Breidenbach, supra, 17 N.W.2d at pp. 556–557), or possibly, liberty to refrain from traveling outside the state (see Vannier v. Superior Court (1982) 32 Cal.3d 163, 177, 185 Cal.Rptr. 427, 650 P.2d 302).

Regardless of its precise constitutional origins, the common law rule has been modified in the context of criminal law by the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases which employs reciprocal state statutes to secure the attendance of out-of-state witnesses.  (Pen. Code, § 1334 et seq.;   see Vannier v. Superior Court, supra, 32 Cal.3d at p. 169, 185 Cal.Rptr. 427, 650 P.2d 302.)   Although there has been conflicting authority, the Uniform Act has been interpreted as not being restricted to the use of a subpoena to compel a witness's attendance for testimony, but also as allowing the use of a subpoena duces tecum to obtain documents beyond a state's borders.  (Application of Grand Jury of State of N.Y. (1979) 8 Mass.App. 760, 397 N.E.2d 686, 687–688, 690–691, fn. 2;  see Annot., Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of Subpoena Duces Tecum (1981) 7 A.L.R.4th 836.)

Additionally, the territorial limits rule appears to have been broadened over parties in the civil context by California's discovery statutes.   These statutes do not contain residency restraints but do place limits on where discovery can be conducted:  i.e., allowing inspection and copying of a party's documents at a “reasonable” place (former § 2031, subd. (b);  current § 2031, subd. (c)(3)), and allowing a deposition more than 75 or 150 miles from the party's residence only upon motion to the court and a showing of good cause and the court's consideration of a lengthy list of factors (former § 2019, subd. (b)(2);  current § 2025, subd. (e)(3)).⁵  (See Twin Lock, Inc. v. Superior Court, supra, 52 Cal.2d at pp. 760–761, 344 P.2d 788;  Glass v. Superior Court (1988) 204 Cal.App.3d 1048, 251 Cal.Rptr. 690 [Indiana residents could be deposed in California upon a proper showing under § 2025, subd. (e)(3) ];  1 Hogan, Modern California Discovery 4th (1981) § 4.1, p. 196.)

In contrast, in the civil law context other than the discovery statutes, the existence of section 1989 confirms that the common law rule—allowing a state to compel persons and their documents to travel only within its own borders—still survives.   Further, even though a nonresident party is already subject to the personal jurisdiction of the court (see Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 123 Cal.App.3d 840, 856, 176 Cal.Rptr. 874), section 1989 by its terms supports the continued application of the rule to parties as well as nonparties—i.e., the section refers to witnesses specified in section 1987, subdivision (b), who are parties.

However, the state-border limitation on subpoena power has not been extended to state residents (or local branches of national corporations) who are subpoenaed to deliver documents which happen to be out-of-state (see Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 810–811, 212 Cal.Rptr. 42 ⁶  ), unless there is no connection between the person's status as a resident and the requested documents (Coopman v. Superior Court (1965) 237 Cal.App.2d 656, 658–661, 47 Cal.Rptr. 131 ⁷  ).  (See also Annot., Subpoena duces tecum for production of items held by a foreign custodian in another country (1962) 82 A.L.R.2d 1403.)

Here, the out-of-state documents are being requested from a nonresident.   The well-entrenched common law principles that subpoena power does not extend beyond a state's borders and that out-of-state documents are beyond the court's process, support construing section 1989 as applying with equal force and independently to out-of-state documents of a nonresident, even if the nonresident witness has voluntarily appeared in the state.   That is, although the person's voluntary appearance now confers power on the court to call him as a witness, by so doing the court is not compelling the witness to travel to its territory.⁸  In contrast, the documents are still out-of-state, and if the court were allowed to order the nonresident to retrieve the documents it would be compelling an act (and possibly an onerous one) requiring travel across state borders.   We conclude that even if a nonresident witness makes a voluntary appearance, he has not thereby removed the territorial limits on the court's power to compel the delivery of documents from nonresidents.⁹

We note the Legislature has created a statutory exception to the geographical limitations in section 1989.   Section 1987.3 ¹⁰ states that section 1989 does not apply when a subpoena duces tecum is served as provided in Evidence Code section 1560 et seq. and the attendance of the custodian or other qualified witness is not required.   Originally enacted to lessen production burdens on nonparty hospitals, Evidence Code section 1560 et seq. was amended in 1969 to allow all nonparty businesses to send records by a special sealed procedure with an authenticating affidavit to the court in lieu of sending a custodian or other qualified witness.¹¹  (See 2 Witkin, Cal. Evidence (3d ed. 1986) Documentary Evidence, § 952, p. 903.)   Here, King is not a nonparty as required under Evidence Code section 1560, nor has a nonparty business (i.e. Lind/Stuart & Hill) been served with a subpoena duces tecum not requiring the personal attendance of the witness,¹² thus this case does not fall under the terms of section 1987.3.

Moreover, we do not construe the existence of section 1987.3 as indicating a broad legislative intent that the territorial limits of section 1989 were not meant to apply to the production of out-of-state documents whenever the nonresident witness is not required to attend (or has voluntarily appeared).   If the Legislature had so intended, it could have enacted a statute to limit the terms of section 1989, rather than carving out a narrow exception based on Evidence Code section 1560 et seq. for the documents of non-party businesses.   Absent a clear legislative enactment indicating a contrary intent, we construe section 1989 in view of the common law understanding that out-of-state documents from nonresidents are outside the court's territorial jurisdiction.

In summary, we conclude the common law rule limiting the court's power to compel attendance of witnesses and documents to its borders is still viable, absent broadening statutory authorization.  Section 1989 does not confer power on a court to compel the attendance of nonresidents, and we hold that restraint applies equally to requiring a nonresident to personally deliver out-of-state documents at trial.

B. No harm arising from failure to produce originals

 Even if arguendo King could be subjected to sanctions for a failure to produce the originals pursuant to this order, we hold the sanction imposed here was improper since there has been no showing plaintiffs needed the originals.   Plaintiffs do not deny King's contention they have copies of all documents referred to in their motion to produce originals at trial.   They do not characterize the trial production motion under section 1987, subdivision (c) as a discovery motion.   It of course, is not.

The record shows that in December 1985, plaintiffs obtained a discovery order allowing them to inspect and copy King's documents in Texas.   No evidence was presented below that plaintiffs did not make copies of all the documents they obtained during pretrial discovery, and plaintiffs acknowledged at oral argument they did indeed do so.   Plaintiffs do not refute King's assertion that the notice to produce documents at trial requests the same documents requested and copied during pretrial discovery.   Further, plaintiffs brought no motion to compel further discovery on the basis that full disclosure was not made during pretrial discovery.

So far as is shown on this record, the notice to produce documents at trial could only have served the purpose of obtaining the originals of documents for which plaintiffs already had copies.   If the plaintiffs desired the originals to meet the best evidence requirements of Evidence Code section 1500, requiring the original writing itself, King's failure to produce the originals allowed plaintiffs to introduce their copies instead.   That is, Evidence Code section 1502 allows a copy if the writing was not reasonably procurable by the proponent by use of the court's process or by other available means.   Similarly, Evidence Code section 1503 allows a copy if the writing is under the control of the opponent and the opponent was notified the writing would be needed and on request at the hearing the opponent has failed to produce the writing.  (31 Cal.Jur.3d (1976) Evidence, §§ 319–320, pp. 399–401.)

Plaintiffs' notice to produce documents at trial satisfied the requirements of Evidence Code section 1503.   Further, the use of copies was liberalized effective January 1986 with the enactment of Evidence Code section 1511, providing that a duplicate is admissible to the same extent as an original, unless there is a genuine issue of fact as to the authenticity of the original or under the circumstances it would be unfair to use the duplicate.   Under these circumstances, there has been no showing plaintiffs would be prejudiced in the presentation of their case absent the originals.

Applying by way of analogy the principles used in discovery cases,¹³ the sanction imposed should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied the production request.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 789, 149 Cal.Rptr. 499.)   Since there has been no showing plaintiffs do not have copies of all the requested documents, it was an abuse of discretion to sanction King for his purported failure to produce all ¹⁴ of the originals at trial.

We recognize that at various points during the course of these proceedings, plaintiffs have hinted that King may not have produced all requested documents in his possession or control during the discovery phase.   However, plaintiffs did not make any motions asserting noncompliance with any discovery request after their inspection in Texas.   At the time plaintiffs were conducting discovery, former section 2034, subdivision (b)(2) ¹⁵ provided in part that if a party refused to obey a discovery order, the “court may make any orders in regard to the refusal which are just, including, but not limited to, ․ (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed․”   Indeed, when issuing the discovery order to compel production in Texas, the trial court specifically stated that if there were missing documents, plaintiffs should come back to court for further help.   Further, under former California Rules of Court, rule 333 (currently covered in section 2024), plaintiffs were entitled to request the trial court's permission to continue discovery proceedings beyond the 30–days before trial deadline, if they were having problems with determining whether King had made full disclosure.¹⁶  Instead, they brought the notice to produce documents at trial, followed by a motion to compel, under section 1987.

Pretrial discovery requests allow a party to inspect and copy documents which are “relevant to the subject matter of the action, or are reasonably calculated to discover admissible evidence․”  (Former § 2031, subd (a);  see current §§ 2031, 2017.)   As we have indicated, discovery must be completed 30 days before trial absent court permission otherwise (§ 2024, former Cal. Rules of Court, rule 333), and disobedience of discovery orders may be remedied by a broad range of sanctions, including contempt, staying the proceedings, and striking a pleading (former § 2034, subd. (b)(2);  current § 2031, subd. (m)).  In contrast, a demand to produce documents at trial under section 1985 (subpoena duces tecum) or section 1987 (notice to produce), allows a party to obtain material documents, usually for the purpose of introducing them into evidence.  (See generally, 2 Witkin, Cal. Evidence (3d ed. 1986) § 1568, p. 1517, § 937, p. 894;  1 Cal. Civil Procedure During Trial (Cont.Ed.Bar 1982) § 4.36, pp. 142–143.)   Unlike the broad remedies defined for disobedience of discovery orders, the only statutorily defined remedy for violation of a subpoena is contempt.  (§ 1991.) ¹⁷

 Plaintiffs' notice to produce and subsequent motion to compel production at trial cannot be construed as a motion to compel further discovery.   The notice and motion do not request relief from pretrial discovery deadlines, nor do they specify documents are being requested that were earlier not disclosed or requested.   Rather, the notice to produce essentially reiterates the generalized groupings of documents requested during discovery proceedings.   In short, the notice to produce documents at trial can only be construed as what it purports to be—i.e., a device to produce originals at trial for evidentiary purposes.¹⁸

DISPOSITION

The judgment is reversed and the trial court is directed to vacate its order of default.

I concur in the result reached by the majority inasmuch as the record before us does not reflect that King or Stuart & Hill have the allegedly missing original documents in their possession or control.   The documents now at issue include original ledgers which would certainly be significant to the conversion of funds alleged to have occurred.   While I cannot agree with King's argument it is respondent's burden to first prove such documents exist before they may be ordered produced pursuant to a request, the production motions made below were not sufficiently specific to enable one to conclude these documents are actually being withheld.   Absent a showing of nondisclosure of documents during pretrial discovery or the inability of plaintiffs to fully present their case in the absence of the documents, I believe the striking of King's answer was inappropriate.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 792–793, 149 Cal.Rptr. 499.)

Despite my conclusion the result reached by the majority is appropriate, I am unwilling to adopt the strict territorial theory advanced by the majority in section A inasmuch as it produces, in my opinion, inexplicable inconsistency and loss of judicial control over cases which are properly being heard in this state.

By virtue of the majority holding, a nonresident party who voluntarily attends his trial in this state may not be compelled to produce crucial documents even where, as here, a trial court finds he has sought to obstruct the judicial process of discovery.   Moreover, he may not be compelled to produce even a single page of documentation.   However, a co-defendant who is a resident of this state may be compelled to leave this state, perhaps at great personal expense, to retrieve numerous documents located elsewhere.

While little authority of any consistent value supports rejection of the territorial theory with respect to document production, little authority of any consistent value exists to support its application.

I would leave document production to the trial court and permit it to take into consideration the numerous factors which might enter into any party or witness (nonresident or resident) being ordered to produce documents pertinent to the decision before the court, including availability of copies of documents, cooperativeness of parties in the discovery process, costs, distance involved and the voluntary presence in court of the party responding to the document request.  (Cf., Morehouse v. Morehouse (1902) 136 Cal. 332, 337, 68 P. 976;  Code Civ.Proc., § 1990.)

FOOTNOTES

FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified..  FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified.

2.   The missing documents were listed as:  “complete sets of books of original entry, ledgers, payment receipts, vouchers, payment records, commissions and brokers' documents and records, complete records relating to salesmen and defendants in this action, and documents relating to the subdivisions listed in Exhibit B to Plaintiffs' Notice․   For example, the set of computerized payment records and printouts relating to Arlington Square have not been produced.   The employee files relating to specified persons, including defendants herein, have not been produced.   Telephone message slips have not been produced.   Documents are missing from certain file folders, and no checks regarding payments of commissions to salesmen have been produced.   Ledgers evidencing commissions paid, sales, and payments to Defendants and employees have not been produced.   The requested employee files have not been produced, nor have check disbursement ledgers, or any checks, correspondence, memoranda, or notes pertaining to the specified persons and defendants, have been produced․  [¶] None of the requested documents pertaining to Defendants PAULA ABRAHAMSON or JOSEPH ABRAHAMSON, or Murray Abrahamson or Danny Abrahamson have been produced.”

3.   This issue was presented to the trial court (in King's motion for reconsideration of the production order) and in the writ proceedings to the appellate courts, but it was not reasserted in King's brief in this appeal.   We granted plaintiffs' request to take judicial notice of the writ proceedings before us, wherein the issue was fully briefed.   We consider the issue important enough to rely on in reversing the judgment, since it affects the extent to which King can be required to produce the documents at trial upon remand.   Our denial of King's writ challenging the trial court's order to produce does not foreclose consideration of the issue, since we merely denied it on the basis there had been no showing of an abuse of discretion.  (See People v. Medina (1972) 6 Cal.3d 484, 490–492, 99 Cal.Rptr. 630, 492 P.2d 686;  People v. Durrett (1985) 164 Cal.App.3d 947, 955, 210 Cal.Rptr. 874;  Donia v. Alcoholic Bev. etc. Appeals Bd. (1985) 167 Cal.App.3d 588, 594, 213 Cal.Rptr. 447.)   Thus, we rendered no opinion on the merits of the jurisdictional issue.   Further, the facts pertaining to the issue are not in dispute (i.e., King is a resident of Texas and the documents are in Texas), and we may raise on our own and decide a case on any points necessary to its proper disposition.   (In re Marriage of Ankenman (1983) 142 Cal.App.3d 833, 837, fn. 2, 191 Cal.Rptr. 292.)

4.   At the time of the Twin Lock case, section 1989 limited the court's territorial jurisdiction to 150 miles from the witness's place of residence.  (Id. at p. 758, 344 P.2d 788.)  Section 1989 was amended in 1981 to base jurisdiction to compel attendance on residency in the State of California.

5.   California's discovery statutes were rewritten in the Civil Discovery Act of 1986, with the new statutes effective July 1, 1987.   Under both the new and former statutes, the court was required to consider a non-inclusive list of factors in determining whether the interests of justice required attendance at a more distant place from the party's residence.

6.   In Boal, a subpoena duces tecum was served on a Los Angeles partner of a corporation, and was not served on the custodian of records in New York.   The court noted that if a subpoena is served on a nonparty, and requires the personal attendance of a nonresident custodian, then other means must be used to secure the documents.   In contrast, the court held a party who is served the subpoena in California may be required to produce the documents, wherever they are situated.   Here, King is not a party residing in California, and thus he is not in the same position as the corporation in Boal which had an office in Los Angeles.

7.   In Coopman, out-of-state documents belonging to an out-of-state corporation were requested (at both a deposition and trial in California) from the president of the corporation.   The president was a resident of California, but neither he nor the corporation were a party to the action, nor did the corporation have any contacts with California.   The court held the corporation's documents could not be ordered sent to California.   Although we reach the same conclusion as in Coopman, its factual analysis is not applicable here.   King is a party to the action, and the requested corporate documents do have contacts with California (i.e. via Lind's sales transactions).   Our holding is premised on the facts King is a nonresident and the documents are legitimately in Texas.

8.   Section 1990 states that a person present in court may be required to testify in the same manner as if he were in attendance upon a subpoena.   There are cases which stand for the proposition that when a witness takes the stand and refers to a document which would be in favor of the party desiring it, the court has a duty to order its production.  (See Morehouse v. Morehouse (1902) 136 Cal. 332, 337, 68 P. 976.)   These cases do not address the issue of the limits on a court's territorial jurisdiction to order the delivery of documents.

9.   We note that in Matter of Subpoena Duces Tecum, Etc. (1975) 137 N.J.Super. 208, 348 A.2d 792, 793–795, the court held a voluntary appearance by a nonresident (president of a corporation) allowed him to be properly served with a subpoena duces tecum to deliver out-of-state corporate documents.   The court also held the out-of-state corporation could be compelled to produce the documents since it maintained the financial records of the resident corporation which was the subject of a grand jury investigation.  (Id. 348 A.2d at pp. 795–797.)   Thus, the result in the case could have been justified on the fact that the subpoena duces tecum for the financial records was directed to a resident corporation which had control of the records, even if a nonresident corporation and person had physical possession of them and regardless of whether the nonresident president was served with the subpoena.   The factual analysis in this New Jersey case does not persuade us to apply its holding here, since there has been no contention that King should be construed as a resident of the state.  (See In re Morelli (1970) 11 Cal.App.3d 819, 831, 91 Cal.Rptr. 72, for a definition of residency under § 1989.)

10.   Section 1987.3 states:  “When a subpoena duces tecum is served upon a custodian of records or other qualified witness as provided in Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code, and his personal attendance is not required by the terms of the subpoena, Section 1989 shall not apply.”

11.   Evidence Code section 1560 states:  “(b) Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness, within five days after the receipt of the subpoena in any criminal action or within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness, or within 15 days after the receipt of the subpoena in any civil action or within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness, delivers by mail or otherwise a true, legible, and durable copy of all the records described in the subpoena to the clerk of court or to the judge if there be no clerk or to such other person as described in subdivision (a) of Section 2018 of the Code of Civil Procedure, together with the affidavit described in Section 1561.”  (Italics added.)Evidence Code section 1564 states:  “The personal attendance of the custodian or other qualified witness and the production of the original records is not required unless, at the discretion of the requesting party, the subpoena duces tecum contains a clause which reads:  ‘The personal attendance of the custodian or other qualified witness and the production of the original records are required by this subpoena.   The procedure authorized pursuant to subdivision (b) of Section 1560, and Sections 1561 and 1562, of the Evidence Code will not be deemed sufficient compliance with this subpoena.’ ”

12.   The notices to produce directed to King stated that they required his personal attendance.

13.   As we discuss below, plaintiffs' notice to produce documents at trial cannot be construed as a discovery request.

14.   We note that plaintiffs pre-marked some 1,400 documents for trial.

15.   Effective July 1987, the substance of former section 2034 is contained in current section 2031.

16.   During oral argument, plaintiffs stated they went to Texas and copied every document disclosed to them, and when they were collating the documents, they discovered the disclosure had not been complete.   We express no opinion as to whether plaintiffs, upon proper motion, should now be afforded further access to the documents.Plaintiffs also stated at oral argument that the bankruptcy court injunction in Texas prevented them from obtaining full discovery.   The bankruptcy injunction protects the trustees from discovery and does not refer to King, thus we fail to see how it affects proceeding against King under California discovery provisions.

17.   Section 1987, subdivisions (b) and (c) indicate the sanction for a party's disobedience of a notice to attend and produce under that section is the same as for disobedience of a subpoena.

18.   Plaintiffs have not produced evidence that they failed to make copies during discovery, or their copies are illegible, or that they discovered documents exist which need to be produced at trial.  (See, e.g., Boal v. Price Waterhouse & Co., supra, 165 Cal.App.3d at p. 810, 212 Cal.Rptr. 42.)

WORK, Associate Justice.

WIENER, Acting P.J., concurs.