Zellerbach v. Superior Court

California Court of Appeal Dec 14, 1934 No. Civ. 9665Published

Before: Spence

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Holding. The court held that the petitioners complied with statutory requirements for taking a deposition and that a writ of mandate is the proper remedy to compel a witness to testify after they refused to do so.

Issues

Whether the subpoena was issued in accordance with the law when the supporting affidavit was made by an associate of counsel of record.
Whether the affidavit supporting the issuance of a subpoena must be served upon all opposing parties.
Whether a party can object to a deposition on the grounds that a co-defendant who has not appeared in the action was not served with notice.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“We are of the opinion that petitioners complied with the statutory requirements for the taking of said deposition and that the trial court should have ordered the witness to testify.”

“None of the code sections require that the affidavit upon which the subpoena is issued be served upon any of the parties.”

“It is clear that in the event the deposition had proceeded, such deposition would not have been binding in any way upon any party not served with notice.”

SPENCE, J.

Petitioners seek by writ of mandate to compel the respondent court to set aside its order discharging an order to show cause directed to Arthur Zellerbach and further to compel said court to order said Arthur Zellerbach to testify as a witness upon the taking of a deposition.

[51]

In an action brought by said Arthur Zellerbach as plaintiff against the petitioners and others as defendants, petitioners sought to take the deposition of said plaintiff. On June 1, 1934, petitioners obtained a subpoena from the county clerk upon the affidavit of Hugh R Bolander, Jr., which subpoena directed said plaintiff to appear for the taking of said deposition on June 6, 1934. On the same day, June 1, 1934, notice of the taking of said deposition together with the affidavit of Eugene D. Bennett in support thereof were served upon counsel for plaintiff. Said notice was directed to plaintiff only. On June 5, 1934, an amended notice supported by the affidavit of Eugene D. Bennett was served upon counsel for plaintiff. Said amended notice was* directed to plaintiff and also to the defendants other than petitioners, namely, Dorothy Johnson Zellerbach and Dorothy Ryan Zellerbach. An order shortening time for the service of the amended notice was obtained and said amended notice and the supporting affidavit were also served upon the defendant Dorothy Johnson Zellerbach on June 5, 1934. The defendant Dorothy Ryan Zellerbach had not appeared in said action and was not served with any of the papers. At the appointed time, plaintiff appeared before the notary public, but he refused to be sworn or to testify on advice of his counsel. Thereafter the notary filed his return and report of the disobedience to the subpoena. The respondent court issued an order to show cause, but upon the hearing thereof, discharged the same and refused to order said plaintiff to testify.

We are of the opinion that petitioners complied with the statutory requirements for the taking of said deposition and that the trial court should have ordered the witness to testify. We are further of the opinion that

mandamus

is the proper remedy.

(Christ

Zellerbach v. Superior Court

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SPENCE, J.

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