Pacific Automobile Ins. Co. v. Superior Court

This is a proceeding in mandamus to compel the Superior Court of Santa Barbara County to vacate and quash a subpoena duces tecum requiring production of documents in a discovery proceeding.

The proceeding arises out of an action filed by the County of Santa Barbara against petitioners and Raymond Ehrlich for money allegedly expended by the county for medical and related services rendered by the county to Ehrlich when he was injured in an accident with petitioner Lurie. In the first cause of action, based upon intentional interference with contract, it is alleged that Ehrlich is and was a person poor and unable to support himself, and in immediate need of support, and medically indigent with the exception of his assets in the form of a cause of action against Lurie arising from the injury proximately caused by Lurie; that, “In consideration of the medical services rendered and to be rendered as aforesaid, and in consideration of plaintiff’s promise to forbear to sue said Raymond Ehrlich to recover the reasonable value of the care and services rendered to Raymond Ehrlich by plaintiff, as hereinabove stated, Raymond Ehrlich orally agreed that he would not release Tobart Richard Lurie and Does One through Doe Ten without the consent of the plaintiff in order that plaintiff might be reimbursed for medical services rendered as a direct and proximate result of the aforementioned automobile collision” and that in reliance upon said agreement plaintiff did forbear to sue said Ehrlich. It is further alleged that on or about October 28, 1966, Pacific Automobile Insurance Company and John C. McIntyre, and each of them, “with full knowledge of all of the foregoing facts hereinabove alleged, did fraudulently, knowingly, intentionally and maliciously persuade said Raymond Ehrlich to breach, repudiate and cancel the said oral contract and induce him to execute a release of all claims against Tobert Richard Lurie arising out of the aforementioned automobile collision.” It is further alleged that Ehrlich would not have breached the said oral contract with plaintiff but for the wilful and fraudulent conduct of Pacific Automobile Insurance Company and John C. McIntyre; that Ehrlich did repudiate and cancel the said oral

In the declaration of the deputy county counsel filed in support of the subpoena duces tecum it is alleged that “Declarant is informed and believes, and upon such information and belief alleges, that John C. McIntyre has in his possession • or under his control certain documents which are relevant and material to the complaint of Santa Barbara County herein, for the intentional interference with the contractual relationship of the County of Santa Barbara and Raymond Ehrlich.” Then follows a description of the material to be produced as above set forth. Declarant then states: “At various stages in this controversy, the plaintiff has requested discovery and inspection of the records involving the collision between Tobert Richard Lurie and pedestrian Raymond Ehrlich on January 18, 1966, which records are pertinent to the issues in the intentional interference .with the contractual relationship of the Pacific Automobile Insurance Company. At all times herein mentioned such right of inspection has been refused by said defendants or so narrowly circumscribed as to preclude the proper preparation of plaintiff’s case for trial. . . . Each and all of the documents and records of Pacific Automobile Insurance Company and John C. MCIntyre, listed above constitute and contain evidence relevant and material to the subject matter involved in this action, and said documents and records are not privileged. ’ ’

It will be noted that in this declaration, the statement that McIntyre has the requested material in his posses

With respect to the required showing of good cause under section 2036, the court in Johnson v. Superior Court, supra, states (pp. 836-837) : “By the mandate of this section good cause ‘must now be articulated in any given case by an affirmative showing of specific facts justifying discovery.’ (Flora Crane Service, Inc. v. Superior Court, 234 Cal.App.2d 767 , 792 [ 45 Cal.Rptr. 79 ].) In Associated Brewers Distributing Co. v. Superior Court, 65 Cal.2d 583 , 587 [ 55 Cal.Rptr. 772 , 422 P.2d 332 ], in which the court settled the meaning of the ‘good cause’ requirement of section 2036, the court held on the authority of Shively v. Stewart, 65 Cal.2d 475 [ 55 Cal.Rptr. 217 , 421 P.2d 65 ] that ‘When the “subpoena power is invoked to secure discovery, the good cause and materiality requirements of Code of Civil Procedure section 1985 must be governed by discovery standards” ’ . . . Neither Shively nor Associated Brewers, nor any other case called to our attention, dispenses with the factual showing required by section 1985 either as to good cause or as to materiality. On the contrary, both cases make it perfectly clear that, to secure discovery by use of a subpoena duces tecum, there must be a showing of more than a wish for the benefit of all the information in the adversary’s files, and that the trial court must be afforded the factual data by the required affidavit to enable it to make an informed ruling on the issues of materiality and good cause. ’ ’

The underlying action is not one for personal injuries. In its cause of action for intentional interference with contract (which is the only cause of action mentioned in its declaration) the county must prove the existence of a valid contract; that defendants had knowledge of the existence of the contract and intended to induce a breach thereof; that the contract was in fact breached resulting in injury to plaintiff;

As stated in Johnson v. Superior Court, supra, 258 Cal.App.2d 829 , 835: “The clear import of all the cases dealing with the subject is that a subpoena duces tecum has no force or effect if the affidavit required by section 1985 of the Code of Civil Procedure does not comply with the provisions of that section.” Deficiencies in the required affidavit cannot be supplied by allegations of facts in this court. It is our conclusion that the county’s application failed to meet the statutory requirements.

Petitioners also contend that the application fails to sufficiently identify the material to be produced. This matter is discussed in Flora Crane Service, Inc. v. Superior Court, 234 Cal.App.2d 767 , 785-787 [ 45 Cal.Rptr. 79 ]: “As noted above, it was incumbent upon petitioner to ‘specify the exact matters or things desired to be produced’ (§ 1985). In Union Trust Co. v. Superior Court, 11 Cal.2d 449 , 458 [ 81 P.2d 150 , 118 A.L.R. 259 ], which was decided before the recent Discovery Act and dealt with a motion under former section 1000, the court said: ‘It is apparent that, in reason, all that should be required of a party litigant in his endeavor to obtain an inspection of records which are pertinent to his cause and which he is or should be entitled to examine, is that in his attempt to do so, he describe them with such certainty only as will or should reasonably apprise his legal opponent, or the custodian of such records, of that which may be desired. . . . Whether the description of records is sufficient to inform their custodian of that which is desired, presents a question merely of whether under the circumstances and situation generally, considered in the light of reason and common sense, he ought to recognize and be able to distinguish or identify the particular thing that is required. ’ West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d 407 , 419-420 [ 15 Cal.Rptr. 119 , 364 P.2d 295 ], arising under the new discovery statutes . . . declared: ‘Inspection may not be had without adequate identification of the document sought to be inspected. This was the rule prior to the present discovery statutes (Union

In Shively v. Stewart, supra, 65 Cal.2d 475 , accusations were filed against petitioners, licensed physicians, stating that they aided, abetted, attempted and performed criminal abortions on named women. Petitioners sought to subpoena from the Executive Secretary of the State Board of Medical Examiners (1) statements taken from the women named in the accusations and from their husbands describing their care and treatment; (2) copies of petitioners’ bills, letters, and documents with respect to the treatment given the women; and (3) reports and documents gathered by investigators and employees of the board. In the affidavits in support thereof, petitioners declared that at the hearing the mental and physical condition of the women, the intentions and acts of petitioners, and the necessity of the surgical procedures would be in issue; they also stated that they did not have copies of the bills, letters and documents referred to as item two. The court held that petitioners were clearly entitled to prehearing discovery of items one and two. With respect to item three, the court stated that “the applicable rule is that to secure discovery, there must be a showing of more than a wish for the benefit of all the information in the adversary’s files. [Citations.] Accordingly, in the absence of some additional showing of need and specificity, petitioners are not entitled to discovery of all of the reports and documents gathered by investigators and employees of the board. ” (P. 482.)

Although literal accuracy cannot be expected in the description of a paper in the possession of the adverse party (Burke v. Table Mountain Water Co., 12 Cal. 403 ), the mov

An order made without the showing required by the statutes is beyond the jurisdiction of the court (see Greyhound Corp. v. Superior Court, 56 Cal.2d 355 , 388 [15 Cal. Rtpr. 90, 364 P.2d 266 ]), and the subpoena duces tecum must be quashed.

In view of the above conclusion, it is not necessary to determine the merits of the claim of “privileged communications, ’ ’ nor would it be appropriate in the present state of the record. The privilege is asserted as to everything contained in the broad request of the subpoena. Obviously, the investigative file consists of various types of material. Not all information gathered by an investigator and communicated to an attorney comes within the attorney-client privilege. (See Suezaki v. Superior Court, 58 Cal.2d 166 , 174-177 [ 23 Cal.Rptr. 368 , 373 P.2d 432 , 95 A.L.R.2d 1073 ]; San Diego Professional Assn. v. Superior Court, 58 Cal.2d 194 , 201-202 [ 23 Cal.Rptr. 384 , 373 P.2d 448 , 97 A.L.R.2d 761 ]; D. I. Chadbourne, Inc. v. Superior Court, 60 Cal.2d 723 , 726-737 [ 36 Cal.Rptr. 468 , 388 P.2d 700 ].) Should the county decide to make its application anew, any question of the application of the attorney-client privilege will have to be made upon the basis of the particular items or type of material then requested to be produced.

Let a writ of mandate issue requiring respondent court to

Kaus, P. J., and Reppy, J., concurred.