Pelton Motors, Inc. v. Superior Court

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

Petitioner seeks a writ of mandate requiring respondent court to quash a subpoena duces tecum issued by it in case 611606 entitled

Gene Tyler,

plaintiff, v.

Pelton Motors, Inc. et al.,

defendants. The real party in interest in this proceeding is Gene Tyler, the said plaintiff. He has not filed any opposition to the endeavor of petitioner to have the subpoena duces tecum quashed.

Plaintiff in that case, Gene Tyler, has brought an action against defendant, Pelton Motors, Inc., setting out in his second amended complaint two common counts for alleged salesman’s commissions earned and unpaid, the .first count being for money had and received and the second count being on an open book account. These claims in the complaint were denied and an affirmative defense set up by defendant in its answers.

[567]

Attorney for plaintiff Tyler filed an affidavit asking for the issuance of a subpoena duces tecum and setting out that he' desired to inspect: “Pelton Motors, Inc. sales journal and sales ledger covering the period 1946 and 1953, inclusive, ledger containing accounts between Pelton Motors, Inc. and Gene Tyler, covering the period 1946 and 1953, inclusive,

and all contracts between Pelton Motors, Inc., and its Sales Department employees which were entered into between 1946 and 1953, inclusive.”

(Emphasis added.)

His reason for the request is stated to be:

“That said books, records and documents are material to the issues of fact in this case in that they will show or tend to show the basis on which the amounts, due to plaintiff for work, labor and services for the defendants, were computed; the reasonable value of said work, labor and services; the specific date on which the obligation sued upon herein was entered into; the dates of performance of the said work, labor and services; the transactions by virtue of which defendants became indebted to plaintiff; the fact that no part of the amount claimed by plaintiff has been paid; and the validity and significance of the agreements and contracts referred to in the First Affirmative Defense contained in Defendant’s Answer to Second Amended Complaint.”