National Automobile & Casualty Insurance v. Garrison

McCOMB, J.

From a judgment discharging an alternative writ of mandate and denying a peremptory writ requiring defendant to issue certain subpoenas duces tecum, petitioner appeals.

The essential facts are these:

Petitioner was an insurance corporation duly authorized by certificate issued by the respondent to transact certain classes of insurance business in this state. Respondent had ordered petitioner to appear before him to show cause why its certificate of authority to transact business should not be revoked.

During the course of the hearing petitioner, on September 6,1945, made written request upon respondent for the issuance forthwith of certain subpoenas duces tecum. Respondent refused to issue such subpoenas for the reason that petitioner had failed to submit an affidavit setting forth the asserted materiality of the evidence sought to be produced. Thereafter petitioner submitted an affidavit in support of his request for such subpoenas duces tecum. Respondent refused to issue the subpoenas duces tecum forthwith, but stated that he would consider whether or not the matters sought to be produced were material to any issue in the hearing.

A continuance was then granted to permit petitioner to file the present proceeding in the superior court. The trial court denied the petition upon the ground that respondent was vested with a discretion in determining whether the subpoenas duces tecum should issue or not, and was not required to issue them forthwith as a matter of course.

This is the sole question necessary for us to determine:

Under section 11510 of the Government Code, does respondent have any discretion in issuing a subpoena duces tecum upon request after a hearing in a case has commenced?

This question must be answered in the affirmative. Section 11510(a) of the Government Code reads as follows:

“Before the hearing has commenced the agency

shall issue

subpenas and subpenas duces tecum at the request of any party in accordance with the provisions of Section 1985 of the Code of Civil Procedure. After the hearing has commenced the agency itself hearing a case or a hearing officer sitting alone

may issue

subpenas and subpenas duces tecum.” (Italics added.)