Lewis v. Superior Court

California Court of Appeal Jun 29, 1953 No. Civ. 19705Published

Before: Scott (Robert H.)

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Holding. The court held that the affidavits supporting the subpoenas duces tecum were legally insufficient because they were based solely on information and belief without stating underlying facts, and thus the trial court must quash the subpoenas and vacate the enforcement order.

Issues

Whether an affidavit for a subpoena duces tecum based solely on information and belief without supporting facts is sufficient.
Whether the trial court erred in enforcing a subpoena duces tecum supported by legally insufficient affidavits.

Disposition. remanded

Quotations verified verbatim against the opinion

“A reading of the affidavits shows that they are insufficient and that the trial court must be precluded from further proceedings based upon them.”

“The allegations in such an affidavit are insufficient, if they are based solely upon "the information and belief of the affiant and there are no facts alleged to indicate the basis of affiant’s information and belief.”

[771]

SCOTT (Robert H.), J. pro tem.

Petitioners apply for a writ of mandate requiring respondent superior court to quash a subpoena duces tecum issued by it and to vacate the order enforcing the same.

An action was commenced by George C. Knapp, as business representative, and Waunita Long, as secretary of United Shoe Workers of America, Local 122, C.I.O., as plaintiffs. They appear in these proceedings as the real parties in interest. Among other defendants are petitioners Lewis and Levitan individually and as copartners trading as California Footwear Company. The complaint is described as one for injunction, declaratory relief, specific performance and damages.

On the same day that the complaint was filed, two affidavits for subpoena duces tecum and orders for issuance of the same were filed. As to each named defendant the essential averments of the affidavit were as follows:

“Affiant is informed and believes, and upon that ground alleges, that (naming defendant Lewis in one affidavit and defendant Levitan in the other) has in his custody and under his control the following named documents and objects:

“All written leases, all written partnership agreements and all other written contracts made by and between or on behalf of Jack Lewis and Joseph Levitan and California Footwear Co., or either of them, with Maurice Fellman, Euth Fellman and Trina Shoe Company, or any of them; all financial books, records, accounts, receipts, ledgers and financial statements of Jack Lewis and Joseph Levitan and California Footwear Co., or any of them, and particularly including, but not limited to, accounts or ledgers showing all payments made by Jack Lewis and Joseph Levitan and California Footwear Co., or any of them, to Maurice Fellman, Euth Fellman and Trina Shoe Company, or any of them, and/or any of their employees, and receipts by Jack Lewis and Joseph Levi-tan and California Footwear Co., or any of them, from Maurice Fellman, Euth Fellman and Trina Shoe Company, or any of them, or any of their employees; all statements, invoices and other written documents setting forth the amounts and cost of any and all merchandise, inventory, raw materials, findings, leather, machinery, equipment, labels and packing cases purchased by Jack Lewis, Joseph Levitan and California Footwear Co., or any of them, for themselves or any of them, or for sale, rental or lease to, or purchase by, or use of Maurice Fellman, Euth Fellman and Trina Shoe

Lewis v. Superior Court

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