UNION TRUST CO OF SAN DIEGO v. SUPERIOR COURT IN AND FOR SAN DIEGO COUNTY (1937)

This is an original proceeding seeking a peremptory writ of mandate directing a judge of the respondent court to set for trial an action pending in his department.

On August 14, 1931, judgment was rendered in the superior court of San Diego county in favor of petitioner against C. J. Novotny. About September 17, 1931, a deficiency judgment was entered against Novotny in the sum of $1,744.27. About June 2, 1936, an action on the deficiency judgment was commenced by petitioner against Novotny. The case was finally brought to issue. Among the pleadings of Mr. Novotny is a cross–complaint wherein, among other things, he seeks damages against petitioner in the sum of $106,000. The case being at issue, it was set for trial.

On May 19, 1937, C. J. Novotny filed a notice of motion for inspection of documents in possession of petitioner and of its books. This was supported by the affidavit of Novotny. On May 21, 1937, the trial judge made the following order:

“Order for Inspection and Copies

“The defendant's motion for such purposes coming on regularly to be heard this 21st day of May, 1937, Stearns, Luce, Forward & Swing appearing for plaintiff and C. J. Novotny appearing for defendant, the matter having been fully presented by respective counsel and the court being fully advised it is hereby

“Ordered that plaintiff give to defendant forthwith an inspection and copy or permission to take a copy of the entries of accounts and of the documents and papers mentioned in the affidavit of C. J. Novotny sworn to on May 19, 1937, and upon which said motion is in part based and made. The inspection and copies to be made in the office of plaintiff and in the presence of plaintiff's attorney or agent, said inspection to commence May 21, 1937, and continue during business hours on May 21 and May 22, 1937.

“Dated: May 21, 1937.”

On May 24th this order was amended as follows:

“The matter of the plaintiff's motion to set aside the Order for inspection and copies, of certain books and records, made by this Court on the 21st day of May, 1937, came on for hearing on this 24th day of May, 1937, Stearns, Luce, Forward & Swing appearing for plaintiff and Curtis Hillyer, Geo. A. Westover and C. J. Novotny appearing for defendant, and the matter having been presented by counsel and the Court being fully advised:

“It is hereby ordered that the plaintiff give to the defendants forthwith an inspection and copy or permission to take a copy of the entries of account and of the documents and papers mentioned in the affidavit of C. J. Novotny sworn to on May 19, 1937, excepting those certain documents and records mentioned in said affidavit as follows: ‘All entries in full and all of said books relating to and showing the purchase and sale of stock in plaintiff corporation and in the Union Title Insurance Company and all entries in stock journals, stock ledgers, books of certificates of stock, stock sales and transfer books relating to or containing entries relating to the capital stock of plaintiff corporation and the Union Title Insurance Company and the issue, sale, cancellation and transfer of such capital stock in both of said corporations from the year 1919 to the present,’ which said mentioned records need not be produced for inspection and/or copy. That all other books, papers and records mentioned in said affidavit be produced pursuant to this order.

“That the inspection and copies to be made in the office of the plaintiff corporation and in the presence of the plaintiff's attorneys or agents, said inspection to commence at the hour of 8:30 o'clock A M on the 25th day of May, 1937, and continue during business hours until the same shall have been completed.

“And it is further ordered that the plaintiff shall make available for such examination, inspection and/or copy of all of said records of said plaintiff corporation:

“Dated: May 24th, 1937.”

Petitioner moved to vacate the foregoing orders. The motion was denied. Petitioner refused to comply with the orders on the ground that they were void. Thereupon the following order was signed and filed:

“It appearing to the Court that the Union Trust Company of San Diego, a corporation, has refused to comply with the order of May 20, 1937, and the order of May 21, 1937, for an inspection by defendant of certain documents in the custody of plaintiff;

“It is hereby ordered, adjudged and decreed that the above case be not set for trial except after a reasonable lapse of time after a compliance by plaintiff with the orders above referred to.

“It is further ordered, adjudged and decreed that this said order be made nunc pro tunc as of June 14th, 1937.”

The proceeding for inspection of the books and records of petitioner was brought under the provisions of section 1000 of the Code of Civil Procedure (as amended by St.1933, p. 1897). The facts which must be established before an order for inspection can lawfully issue is thus clearly stated in Shell Oil Co. v. Superior Court, 109 Cal.App. 75, 292 P. 531, 532:

“The question presented involves the constitutional right of the people to ‘be secure in their * * * papers and effects against unreasonable seizures and searches.’ Const., art. 1, § 19.

“As was said in Kullman, Salz & Co. v. Superior Court, 15 Cal.App. 276, at page 285, 114 P. 589, 593: ‘The right of the people to be secure against unreasonable or unnecessary seizure of their private papers and documents is justly regarded as a highly sacred one––so much so, in fact, that the people themselves have taken the pains in express written terms to guarantee and safeguard its perfect enjoyment. Const., art. 1,§ 19. In no case, therefore, should a person be forced to surrender his private books and papers to another who does not claim to own or have any interest in them except upon convincing proof that such books or papers contain evidence which materially affects the rights in litigation of the person demanding them.’ Citing and quoting from Ex parte Clarke, 126 Cal. 235, 238, 58 P. 546, 46 L.R.A. 835, 77 Am.St.Rep. 176.

“As a condition precedent to support such an order of inspection there must be shown, by clear and unequivocal proof, two essential facts:

“(1) That the precise book, paper, or document containing the evidence material to the issue be described or designated so that it may be readily recognized; and

“(2) That such book, paper, or document contains evidence material to the issue to be tried by the court. Such evidence must be competent evidence, not hearsay.

“Again quoting from Kullman, Salz & Co. v. Superior Court, 15 Cal.App. 276, at page 286, 114 P. 589, 593, it is said: ‘Nor is it enough, as is said by the court in Morrison v. Sturges, 26 How.Prac.(N.Y.) [177] 179, “that the party believes or is advised that the paper contains material evidence. Facts must be shown to support it.”’ The Kullman Case was approved in Funkenstein v. Superior Court, 23 Cal.App. 663, and at page 667, 139 P. 101, 103, we find this significant language:

“‘If any of such books, papers or documents so made, issued, or taken would be admissible upon any theory of the case, it was the duty of the affiant to set forth the facts and reasons showing wherein their materiality and admissibility consist; and it was not sufficient in his affidavit to merely rely upon the legal conclusion stated in general terms that such books, papers, and documents would be material.

“‘Finally, the entire failure of the affiant to identify with any particularity of description any specific book or paper or document constitutes, in our opinion, a fatal objection to the jurisdiction of the trial court to make the order in question.”’

An order based on an affidavit or other proof which fails to show that the evidence sought is competent is void and unenforceable. Commercial Bank v. Superior Court, 192 Cal. 395, 220 P. 422. The “precise book, paper, or document, containing such evidence” must be “so designated or described that it may be identified.” Pyper v. Jennings, 47 Cal.App. 623, 191 P. 565, 566. It is not sufficient that the moving party be informed, or believe, that the book, paper, or other document contains evidence material to an issue of the cause. He must disclose facts showing that it actually contains competent and material evidence. Kullman, Salz & Co. v. Superior Court, supra; Ex parte Clarke, 126 Cal. 235, 58 P. 546, 46 L.R.A. 835, 77 Am.St.Rep. 176.

When we measure the sufficiency of the affidavit of Novotny in support of his motion we find it fatally defective and insufficient to support the order of inspection. For illustration we quote two paragraphs of the affidavit:

“All entries in said books, all documents and papers relating to, held or received by plaintiff in connection with said trust and agreement; all entries in said books and all agreements, contracts, documents and papers relating to or connected with the judgments mentioned in the complaint herein and the transactions out of which said judgments arose: “All entries in said books and all documents and papers relating to the matters and transactions covered by and alleged in defendant's counterclaim and cross complaint herein.”

No effort is made to identify any of the books, papers, or documents to be inspected, by date, name, or any description whereby any of them might be identified with any degree of certainty. It is clear that under the order of the trial judge Novotny could go on a “fishing expedition” through many of the records of petitioner which are none of his concern. This cannot be permitted. Shell Oil Co. v. Superior Court, supra. The evidence sought to be discovered is not set forth with any particularity. Its competence and materiality are only averred by way of the legal conclusion of the affiant. This legal conclusion must be disregarded, leaving the affidavit barren of any attempt to show that the evidence sought is either material or competent to any issue made by the pleadings in the case.

As the orders for inspection are not supported by any sufficient affidavit or other evidence, they are void. It follows that there was no ground for the nunc pro tunc order of June 14, 1937, and that the cause should be set for trial.

Let the peremptory writ of mandate issue as prayed for.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.