Steele v. Superior Court

PETERS, J.

Petitioner is the plaintiff in a civil action entitled

Emmett T. Steele

v.

Litton Industries, Inc., et al.,

pending in the respondent Superior Court. The corporation, Charles B. Thornton, Roy L. Ash, Hugh W. Jamieson, and Electro Dynamics Stock Trust Pund, a partnership, are defendants in that action, and are also the real parties in interest in this proceeding. Petitioner seeks a writ of mandate to compel respondent court to vacate an order denying his motion, made pursuant to section 2031 of the Code of Civil Procedure, by which he sought authority to inspect several

[404]

unsigned depositions which had been taken in a separate and distinct action which was subsequently dismissed, and which depositions are either in the possession of the real parties or under their control.

The facts which were presented to the respondent court, and upon which it predicated its denial of the motion, are substantially as follows:

Jamieson, Thornton and Ash entered into an agreement in 1953, resulting in the acquisition by Litton Industries, Inc., of a business formerly owned by one Charles Litton. The three individuals formed a partnership for the purpose of holding the stock of the corporation. In 1958 disagreements occurred between the partners, resulting in an action filed by Jamieson, in which Thornton and Ash were named as defendants. In that action Jamieson sought declaratory relief, dissolution of the partnership, an accounting, damages, and other relief based upon the alleged breach of fiduciary duty, breach of contract, and conversion. While that action was pending, Steele filed an independent action in which he named Jamieson, Thornton, Ash, the partnership and the corporation as defendants. He alleged that he was associated in the original transaction and was to receive the same interest in the corporation as was received by the other individuals. His complaint was predicated upon alleged fraud and deceit, conspiracy and breach of contract, and prayed for declaratory relief. He also seeks to impose a constructive trust, based on a breach of fiduciary duty, and to obtain specific performance. Subsequent to the date on which Steele filed his action, depositions were taken in the Jamieson action, to which Steele was not and never has been a party. The depositions included those of Jamieson, Thornton and Ash, all of whom are defendants in the Steele action. Although the depositions were transcribed, they were never corrected or signed. In addition to obtaining the typed copies, the various attorneys involved in the Jamieson action (all of whom are also attorneys for one or more defendants in the Steele suit) obtained and have in their possession the respective notes of the shorthand reporter. Subsequent to the taking of the depositions, Jamieson, the plaintiff in that action, caused his complaint to be dismissed. Thereafter, and in preparation for the trial of his action, Steele moved respondent court for an order authorizing inspection and copying of the Jamieson, Thornton and Ash depositions. The order denying that motion is the basis of this proceeding.