C. S. Smith Metropolitan Market Co. v. Superior Court

EDMONDS, J. The petitioners are seeking a writ of prohibition to prevent the Superior Court from enforcing compliance with a subpoena duces tecum and requiring one of them to answer certain questions.

The Food and Grocery Bureau of Southern California has brought an action to enjoin certain acts of the petitioner C. S. Smith Metropolitan Market Co., Ltd., a corporation, which, it charges, violate the Unfair Practices Act. (Stats. 1913, p. 508, as amended; Deering’s Gen. Laws, Act 878.1.) The complaint alleges that upon various occasions in 1939, the Market company offered for sale and sold certain merchandise below cost. For the purpose of obtaining a subpoena duces tecum in that suit, the Grocery Bureau presented to the superior court an affidavit of one of its attorneys stating that the petitioner Drucquer, whose testimony is sought as a witness, has in his possession the original work sheets and working papers made by him in an examination and analysis of the market company’s books and records. Upon the showing made in this affidavit, a court commissioner ordered the issuance of a subpoena, which in due time, the petitioners moved to recall. This motion was denied.

Thereafter the petitioner Drucquer complied with the subpoena to the extent of appearing at the time and place fixed in it, but he refused to produce the documents called for and [228]to answer certain questions. These facts being reported to the court, it issued an.order requiring the witness to appear and show cause why he should not do so. After a hearing, the court ordered him to answer the questions and to produce his work sheets. This proceeding followed.

The petitioners contend that prohibition is the proper remedy for them to invoke because the respondent court is acting in excess of its jurisdiction and they have no plain, speedy and adequate remedy at law. They also attack the sufficiency of the affidavit upon which the subpoena was issued and the authority of the court commissioner to make the order therefor. The respondent, by way of return to an alternative writ issued by the District Court of Appeal, filed a general demurrer challenging the sufficiency of the petition. It asserts that the petitioners have mistaken their remedy; that the question of jurisdiction was not raised in the proceedings before it and that a court commissioner may order the issuance of a subpoena although the clerk has authority to do so. (Southern Pac. Co. v. Superior Court, 15 Cal. (2d) 206 [100 Pac. (2d) 302].)