Barwis v. Superior Court

[241]Opinion

BROWN (G. A.), P. J. Petitioners seek, inter alia, a writ of prohibition restraining respondent court from enforcing its order directing them to prepare a reporter’s transcript of an administrative hearing and reserving jurisdiction to fix the amount to be paid for said transcript.

Facts

Real party is the plaintiff in an administrative mandamus proceeding pending before respondent court; petitioners are not parties to that action.

Petitioner Comptrans, Inc., a firm of certified shorthand reporters, was employed by the City of Modesto to transcribe an administrative hearing regarding real party’s employment as a policeman. Petitioner Barwis actually reported the administrative hearing held in April of 1978.

Real party sought a transcript of the administrative hearing from petitioners, but a dispute developed regarding the price thereof. Petitioners requested $4,040 for an original and one copy at $2.80 per page. Real party offered to pay at the rate prescribed by Government Code section 69950.

After a hearing upon real party’s motion for relief regarding the preparation and cost of a transcript, respondent court entered the following minute order on August 22, 1978: “Within 30 days of service of formal order and payment of $2,000.00 by Petitioner, Theresa Barwis and Comp-Trans shall prepare, serve and file the reporter’s transcript. Jurisdiction to fix the correct amount of reporter’s fees is reserved.” A formal order to the same effect was signed on August 30, 1978. Petitioners seek appropriate relief from this order.1

Discussion

We hold that respondent court lacks subject matter jurisdiction to order petitioners to prepare a transcript of the administrative hearing and fix the price to be paid for such transcript.

[242]Real party contends that Code of Civil Procedure section 128, subdivision 52 authorizes respondent court’s order.3 We disagree. Petitioners are not “connected with” the administrative mandamus action within the meaning of this statute. (See Gallagher v. Boyle (1922) 58 Cal.App. 571 [209 P. 82].) Their sole connection to said action is that they are in a position to produce evidence which does not presently exist—a transcript of the administrative hearing.4 Petitioners’ nexus to the action is indistinguishable from others who have the ability to produce evidence for use in litigation but have not done so—a photographer who has not photographed the accident scene, an accident reconstruction expert who has not attempted to reconstruct the accident, a medical doctor who has not examined the patient, studied the file or formed an opinion. Section 128 cannot reasonably be construed to vest a court with power to order such persons, including petitioners, to perform labor and thereby produce evidence for use in litigation.