Smith-Golden, Inc. v. Superior Court

McCOMB, J.

These are original applications for writs of mandate requiring respondent superior court to vacate orders for the issuance of

subpoenas duces tecum

and to grant motions to quash the same. The above-entitled petitions were consolidated on stipulation in this court, since the facts and issues are the same, for the purpose of hearing, argument, briefs, and decision.

These are the essential facts:

The Institute of Automobile Dealers, Inc., filed actions against each of petitioners, seeking to enjoin them from violating a provision of the “Unfair Practices Act”. (Stats. 1913, p. 508, as amended; Deering’s Gen. Laws [1937] Act 8781, p. 4157.) Thereafter the clerk of the respondent court issued

subpoenas duces tecum

requiring petitioners to produce their books and records upon the taking of certain depositions. Petitioners made a motion that the

subpoenas duces tecum

be quashed

in toto.

This motion was denied except in

[514]

certain particulars not necessary for us to now consider. The only affidavits used or filed in support of the applications for

subpoenas duces tecum

are affidavits of attorneys for the plaintiffs, wherein the material averments for the issuance of the

subpoenas duces tecum

are made upon the information and belief of the affiants and no facts are set forth to show the basis of affiants’ information or belief. This is the sole question necessary for us to determine:

Is an affidavit, wherein the material facts necessary for the issuance of a subpoena duces tecum are alleged only on information and belief without setting forth supporting facts, sufficient to sustain an order for the issuance of a subpoena duces tecum?