Majority
By this proceeding, petitioner seeks to prohibit the Superior Court of the County of Los Angeles from requiring petitioner to obey a certain subpoena duces tecum directed to a representative of petitioner in an action entitled, “Raymond Houch v. Southern Pacific Company et al.” Said subpoena was issued by the clerk of said superior court upon the application of the plaintiff in said action, accompanied by an .affidavit as required by section 1985 of the Code of Civil Procedure. No order of court was required by the rules of said court for the issuance of a subpoena duces tecum and no order of court was made directing the clerk of. said court to issue the said subpoena. Petitioner promptly after the service of said subpoena upon said representative of petitioner, made a motion, upon due notice to the plaintiff in said action, to recall said subpoena, which was denied by said court. Thereupon petitioner instituted this proceeding to prohibit said superior court from requiring the defendants in said action to obey said subpoena. Said subpoena required petitioner to produce, “All the records of said Company relative to those accidents which have occurred on the line of said Company extending from Alhambra, California, to Duarte, California, and running generally through Arcadia and Monrovia, and, particularly, the permanent records of said Company upon which said reports of accidents are itemized, and schedules for the two years last past before the 25th day of February, 1938, and, further, those records which have been made individually by the crew, or members of each crew, where the equipment has been involved in an accident on said line, as above set out, during the last two years heretofore as indicated.”
“All applications before trial for subpoenas duces tecum shall be accompanied by an affidavit specifying the exact matters or things desired to be produced, and setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his possession or under his control. ”
Section 1986 of the Code of Civil Procedure in part reads as follows:
“1. A subpoena is issued as follows: To require attendance before a court, or at the trial of an issue therein ... it is issued by the clerk of the court in which the action or proceeding is pending under the seal of the court ...”
It will be noted that no distinction between ordinary subpoenas and subpoenas duces tecum in respect to the person by whom they are to be issued is made by code and the only act required of a party desiring the issuance of subpoena duces tecum, not required by one desiring the issuance of an ordinary subpoena, is the filing of an affidavit by the applicant as provided by section 1985. In each instance, the clerk of the court is designated as the proper official to issue the subpoena. No provision is made for any order of court as the basis or authority for the act of the clerk in issuing either an ordinary subpoena or a subpoena duces tecum. We, therefore, conclude that the clerk of court was authorized to issue said subpoena without an order of court.
It is contended, however, that the requirement of the code that an affidavit be filed as a prerequisite to the issuance of a subpoena duces tecum necessarily presupposes that a judicial determination as to the sufficiency of the affidavit to
While it is true that the affidavit must set forth “in full detail the materiality” of the “matters or things” to the issue involved in the case, we are directed to no authority which makes it the duty of the clerk to pass upon the materiality of such matters. On the other hand, we find it stated upon most respectable authority that, “The approved method of testing the relevancy and materiality of documents required by a subpoena duces tecum is to move, as did the appellant here to quash, vacate or modify it.” (Application of Sun-Ray Cloak Co., 256 App. Div. 620 [ 11 N. Y. S. (2d) 202 ].) In 70 Corpus Juris, page 55, it is stated: “A witness upon whom has been served a subpoena duces tecum has a right to question the validity of the writ and the duty to produce the papers called for, and where a subpoena has been improperly issued to enforce the production of documents which the witness is not bound to produce, and his rights are invaded by it, he may properly apply to the court, whose duty it would be to enforce the writ, to vacate it or set it aside. The motion or application to set aside or vacate the subpoena gives the court the opportunity to examine the issues raised by the pleadings in the cause, and in the light thereof to determine the apparent relevancy of the evidence which is sought to be elicited, and also to pass upon the question whether an order for the production of the document in question would constitute an unlawful invasion of privacy.”
In passing upon such a motion, the court would have before it the affidavit and would determine from the matters therein stated whether the evidence sought to be procured thereby was material to the issues in the case. This was the procedure followed in this case by the petitioner herein. Petitioner, as one of the defendants in the case in which the subpoena was issued, moved the court to set aside and vacate the subpoena, which motion the court denied. If this is the accepted procedure in such matters, then we think it is apparent that the statements’ in the affidavit as to the documents to be produced and their materiality to the issues in the case were not
It cannot be said that the issuance of a subpoena duces tecum requiring the production of private papers or documents in the manner provided by sections 1985 and 1986 of the Code of Civil Procedure is violative of article I, section 19, of the Constitution of this state, which seeks to protect the citizen against unreasonable searches and seizures. Before any such paper, document, book, or other thing is required to be produced in court, the party against whom it is sought to be used has the right to a judicial determination by the judge before whom the action is pending as to whether the matter sought to be produced is material to the pending case, and also whether its production in court will violate his constitutional rights against unlawful search and seizure. If he desires not to avail himself of this right before the trial of the action commences and prefers to await the time when he is called upon to produce the documents in court, he may then object to their admissibility on the ground of their immateriality or that his constitutional rights are violated by reason of his being compelled to submit them in evidence before the court. It will thus be seen that the party against whom the. evidence is offered has ample opportunity to protect all his rights before the court in which the action is pending.
The practice prescribed by said sections of our code is practically the same as that provided by the United States Supreme Court in the recently adopted Rules of Civil Pro
Petitioner has cited a number of authorities in support of the proposition “that it is improper to permit a ministerial officer to pass upon the sufficiency of the affidavit required by section 1985 of the Code of Civil Procedure”. We have examined these cases and do not find the above statement to be entirely correct. The authorities cited do, however, at least inferentially, hold that it is improper for a ministerial officer to pass upon the materiality of the evidence required by section 1985 of the Code of Civil Procedure. They are, therefore, in complete harmony with our conclusion in this case as hereinbefore stated.
It is therefore ordered that the petition herein for a peremptory writ of prohibition be and the same is hereby denied, and the alternative writ heretofore issued be and the same is hereby discharged.
Gibson, J., Edmonds, J., Shenk, J., Houser, J., and Waste, C. J., concurred.
Carter, J., deeming himself disqualified, took no part in the consideration or decision of this case.