Bishop v. Merging Capital, Inc.

OPINION

Appellant Merging Capital, Inc. (MCI) is a California corporation whose sole shareholder, officer, and director is Timothy Traub. *Page 1805 Appellant Link 900 Partners (Link) is a general partnership in the formation stage. Traub is the custodian of records for both entities.

On or about November 6, 1995, the California Department of Corporations (DOC) issued a subpoena duces tecum to the custodian of records for MCI and Link. Before producing the documents, Traub requested assurances from the DOC that his testimonial act of producing the documents would not be used against him in any subsequent criminal prosecution. The DOC refused to provide such assurances. Consequently, appellants refused to produce the subpoenaed documents "because, to do so, may violate the custodian's Fifth Amendment right against self-incrimination."

On January 23 and 24, 1996, pursuant to Government Code section11187,1 the DOC filed a petition for an order compelling compliance with the subpoena duces tecum, and on January 24, 1996, filed an ex parte application requesting the same relief. The trial court issued an order to show cause and, after the parties filed an opposition and a reply, the court issued an order to produce, as provided by Government Code section11188,2 requiring the custodian to comply with the subpoena.

MCI and Link appealed that order, challenging the legality of the trial court's order compelling the custodian of records to produce the documents specified in the subpoena. Appellants argue: "If the order is not reversed or modified, the custodian of records may be forced to involuntarily incriminate himself in a future criminal proceeding."

Because an order to produce is not among the appealable orders set forth in Code of Civil Procedure section 904.1, we asked the parties to brief the appealability of the subject order. While acknowledging that the Code of Civil Procedure does not specify that such an order is appealable, both parties ask this court, in the interests of judicial economy and efficiency, to treat the order to produce as an appealable order and decide this matter on the merits. We decline the parties' invitation to ignore the clear statutory mandates which are the sole source of this court's jurisdiction, and dismiss the appeal. *Page 1806 DISCUSSION (1) Subject to certain narrow constitutional limitations, there is no right to appeal. (Lindsey v. Normet (1972)405 U.S. 56, 77 [31 L.Ed.2d 36, 52-53, 92 S.Ct. 862, 876]; Trede v.Superior Court (1943) 21 Cal.2d 630, 634 [134 P.2d 745].) The California Supreme Court has repeatedly held that the right to appeal is wholly statutory. (People v. Chi Ko Wong (1976)18 Cal.3d 698, 709 [135 Cal.Rptr. 392, 557 P.2d 976], disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 34-35 [164 Cal.Rptr. 1, 609 P.2d 468] ["a judgment or order is not appealable unless expressly made so by statute"]; Skaff v.Small Claims Court (1968) 68 Cal.2d 76, 78 [65 Cal.Rptr. 65,435 P.2d 825] ["a party possesses no right of appeal except as provided by statute"]; People v. Keener (1961) 55 Cal.2d 714, 720 [12 Cal.Rptr. 859, 361 P.2d 587], disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 844 [52 Cal.Rptr. 4, 415 P.2d 819] ["an order is not appealable unless declared to be so by the Constitution or by statute"]; People v. Valenti (1957) 49 Cal.2d 199, 204 [316 P.2d 633], disapproved on another point in People v. Sidener (1962)58 Cal.2d 645, 647 [25 Cal.Rptr. 697, 375 P.2d 641] ["the right of appeal is statutory and a judgment . . . is not appealable unless it is expressly made so by statute"]; Modern Barber Col. v.Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728 [192 P.2d 916] ["the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable"]; Trede v. Superior Court, supra, 21 Cal. 2d at p. 634 [there being no constitutional right of appeal, "the appellate procedure is entirely statutory and subject to complete legislative control"]; Superior Wheeler C. Corp. v.Superior Court (1928) 203 Cal. 384, 386 [264 P. 488] ["right of appeal is statutory and may be granted or withheld"].)