Tone v. Superior Court

SHINN, P. J. By his petition for writ of mandate, petitioner Tone represents that he heretofore filed in the superior court a petition for examination of witnesses pursuant to the provisions of sections 2083 to 2089, inclusive, of the Code of Civil Procedure. He sought an order for the examination by deposition of Florabel Muir, Betty Yoight, Elizabeth Cosgriff and Richard Barron, for the purpose of perpetuating their testimony for use in an action which he expects to institute against said persons claiming damages for the invasion of his right of privacy. He accused said persons as conspirators who acted in concert in listening in and recording a series of telephone conversations, messages and communications by and between the petitioner Tone and a young woman then known as Barbara Payton. In the petition it appears that Barbara Payton had a party line telephone, upon which the said Elizabeth Cosgriff was a subscriber. It was alleged that during the month of September, 1951, the said prospective defendants and each of them listened in and recorded said telephone conversations between said Tone and Barbara Payton, and that in so doing they acted unlawfully, fraudulently, clandestinely, in an unauthorized manner and without the permission of the telephone company, using the telephone of said Elizabeth Cosgriff; all of this was without the knowledge or consent of Mr. Tone and Miss Payton. It was also alleged that said prospective defendants and each of them disclosed and published, and attempted to disclose and publish, the substance and purport of said telephone conversations, and that all of their acts were and are in violation of certain statutory enactments. Upon said petition it was duly ordered that said named persons submit to examination and deposition on a day and at a place named, on due service of a copy of said order and said petition.

Prior to the time set for the taking of the deposition, Florabel Muir, by her counsel, gave notice of motion to vacate the order for the examination of witnesses upon the ground that the petition was not filed in good faith, but solely for the [112]purpose of harassing and annoying the said Florabel Muir. It is alleged in the petition filed herein that the court granted the motion and vacated and quashed the order for the examination of said witnesses. It is also alleged that the testimony of each of said witnesses is material and essential to establish the action petitioner expects to institute against them. Petitioner seeks mandate requiring the superior court to vacate its order which vacated and set aside the order for examination of said witnesses and to reinstate the said former order.