Ahern v. Superior Court

California Court of Appeal Jun 25, 1952 No. Civ. 19088Published

Before: Vallee

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Holding. The court held that a witness who is the only person capable of establishing material facts is subject to deposition under Code of Civil Procedure section 2021, subdivision 6, even if an adverse party intends to testify to the contrary.

Issues

Whether a witness is the 'only one' who can establish material facts under CCP section 2021(6) when an adverse party denies those facts.
Whether an adverse party's anticipated contradictory testimony precludes a witness from being the sole source of proof for the purposes of a deposition.

Disposition. Peremptory writ issued.

Quotations verified verbatim against the opinion

“We conclude that upon the facts Kissel is the only “witness” who can establish facts or a fact material to the issue, and that petitioners are entitled as a matter of right to take his deposition.”

“Manifestly, a party cannot establish- a fact or facts by an adverse party who has denied in his answer that such fact or facts occurred.”

VALLÉE, J.

Petitioners seek a writ of mandate commanding the Superior Court of the County of Los Angeles (1) to annul its order granting a motion of defendants to quash a subpoena for the taking of the deposition of one Jack Kissel in an action pending in that court entitled

Margaret F. Ahern et al.

Charles M. King et al.,

No. 567679, (2) to deny the motion, and (3) to enforce the claimed right of petitioner to take the deposition under subdivision 6 of section 2021 of the Code of Civil Procedure.

Petitioners brought action 567679, a stockholder’s derivative suit for an accounting, for the benefit of Southern California Meat Company, a corporation, referred to as the corporation. The named defendants are Charles M. King, William L. Koch, Herbert Kinney, and Trophy Meat Packers, Inc., a corporation. The complaint alleges that during 1943, 1944, and 1945 the defendant Charles M. King, acting on behalf of the corporation, leased some of its wholesale facilities to others at a stated rental; that in addition to the stated rental which was paid to the corporation, King exacted rent from said wholesalers for the use of the facilities of the corporation in the sum of $140,000; that King collected the $140,000 and did not pay it to the corporation.

The defendants Charles M. King, William L. Koch, and Trophy Meat Packers, Inc., filed an answer, .verified by King,

[29]

specifically denying the aforesaid allegations of the complaint.

Thereafter at the request of the plaintiffs a subpoena issued for the taking of the deposition of Jack Kissel. The affidavit upon which the subpoena issued states that Kissel is the only witness who can testify that: about November, 1942, he, as a partner in a hotel and restaurant supply company, leased space. and facilities from the corporation; King acted for the corporation; commencing in November, 1942, and continuing through 1944, Kissel and his partners continued to lease the space and facilities; during this period of time King demanded sums of money of Kissel to be paid weekly to King in addition to the agreed rent; Kissel will testify that the sums so paid exceeded $140,000; Kissel is the only person who can testify to the payments of said sums and to the amounts; no person other than King and Kissel was present at the times the sums were paid.

Ahern v. Superior Court

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