Filed 2/7/13 Murray v. Super. Ct. CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
MICHAEL MURRAY,
Petitioner,
v.
THE SUPERIOR
COURT OF SANTA
CLARA COUNTY,
Respondent;
THE PEOPLE OF THE STATE OF CALIFORNIA,
Real Party in
Interest.
No. H038595
(Santa Clara
County
Super. Ct.
No. C1103688)
Petitioner
Michael Murray (Murray), a criminal defendant below, seeks
court’s order quashing a subpoena duces tecum (SDT) which defense counsel had
issued and which was served upon a third party.
The People filed a motion to quash the SDT, asserting the legal position
that a third party individual could not be served with an SDT initiated by the
defendant in a criminal case. After
three hearings, on June 28, 2012,
the court granted the motion to quash, concluding that Penal Code section 1326
“does not authorize the defense to issue subpoenas to individuals,
non-businesses.â€
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After Murray’s
filing of a petition for writ of mandate challenging that ruling, we granted a
stay of all trial proceedings. Murray
contends, among other things, that he, as a criminal defendant in the
proceedings below, was authorized to have issued an SDT compelling a third
party to produce records in the action.
The People of the State of California,
the real party in interest (People), now concede this point, but argue
nonetheless that the court did not err in quashing the SDT. After considering the respective positions of
Murray and the People, we conclude that there was no legal basis for quashing
the SDT, and we will grant the petition for writ of mandate.
FACTUAL AND
PROCEDURAL BACKGROUND
Murray
was the CEO of The Forma Group, which consisted of two entities, Forma Home
Systems (maker of prefabricated wall panels; FHS), and Forma Framing Systems
(an entity which would contract to provide the labor to install the
prefabricated walls; FFS). Brad Stimson,
the alleged victim, contracted in August 2009 with FHS and FFS for the purchase
and installation of homebuilding materials in Stimson’s Monte Serreno home,
which was being rebuilt after a fire.
Shortly afterward, both FHS and FFS filed for bankruptcy protection, and
another entity operated by Murray, Forma Building Systems, assumed FHS’s
responsibilities under its contract with Murray. A dispute thereafter arose, which concerned
both a controversy as to the extent to which materials were provided for the
payments made by Stimson, and Stimson’s claim that he incurred losses for
defective work.
The District
Attorney of Santa Clara County filed
criminal charges against Murray in
connection with the Stimson project. Murray
was charged with acting as a contractor without a license (Bus. & Prof.
Code, § 7028), advertising as a contractor without a license (Bus. & Prof.
Code, § 7027.1, subd. (a)), and theft by false pretenses (§§ 484/487, subd.
(a)).
Murray served Stimson with an SDT for documents related to insurance claims,
contracts and communications with other contractors, and information supporting
Stimson’s assertion that he is owed restitution. Murray
used the standard Judicial Council form (form CR-125/JV-525) required for SDT’s
in criminal and juvenile cases. (See
Cal. Rules of Court, rule 1.31(a)-(c); Gov.Code, § 68511; 23 pt. 4 West’s
Ann.Code, Court Rules (2012 ed.) appen. A, p. 120.)
The People filed a motion to quash
the SDT on the ground that a third party individual could not be served with an
SDT initiated by the defendant in a criminal case. After an initial hearing in May 2012, the
court continued the matter and requested further briefing. At the second hearing before a different
judge, the court expressed concern about the applicability of the Victim’s Bill
of Rights of 2008, commonly known as Marsy’s Law (Cal. Const., art. I, § 28),
an issue that had not been addressed by either party.
supplemental briefing (in which Murray
did, but the People did not [except by citing the law] address Marsy’s Law)—the
court granted the motion to quash. It
did not rely on Marsy’s Law. Rather, the
court concluded that section 1326 is “ambiguous†and that it “does not
authorize the defense to issue subpoenas to individuals, non-businesses.â€
Murray
filed his petition for writ of mandate, prohibition, or other relief with this
court on July 30, 2012. On August
15, 2012, we issued an order staying all trial court proceedings
and invited the People to submit informal opposition to the petition. After receiving the People’s preliminary
opposition and Murray’s reply, we
issued a Palma
indicating that we were considering issuing a peremptory writ of mandate in the
first instance. The People elected to
have us treat its previously filed informal opposition as its final opposition. Likewise, Murray
notified this court that his reply to the People’s informal opposition should
be deemed his final reply.
DISCUSSION
I.
Discovery orders are generally
reviewed for abuse of discretion. “In
reviewing an order of a superior court granting discovery, we recognize at the
threshold that ‘the discovery statutes vest a wide discretion on the trial
court in granting or denying discovery’ and ‘such exercise (of discretion) may
only be disturbed when it can be said that there has been an abuse of
discretion.’ [Citation.] . . . [But] on orders denying discovery
appellate courts ‘should not use the trial court’s discretion argument to
defeat the liberal policies of the statute.’
[Citation.]†(
(1970) 2 Cal.3d 161, 171; see also
John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) In instances in which the relevant facts
concerning the discovery order are undisputed, the order is reviewed as a
question of law. (Toshiba America Electronic Components, Inc. v. Superior Court (2004) 124
Cal.App.4th 762, 768 (Toshiba
court decision for abuse of discretion where the exercise of that discretion is
not based upon the applicable law. ‘Action
that transgresses the confines of the applicable principles of law is outside
the scope of discretion and we call such action an abuse of discretion.’ [Citation.]â€
(Ibid.; see also
1154, 1161.)
Writ review of discovery rulings is
generally disfavored. (
Cal.App. 4th 1423, 1429 (O’Grady).) Review of discovery rulings by extraordinary
writ proceedings “is generally limited to ‘situations where (1) the issues
presented are of first impression and of general importance to the trial courts
and to the profession [citation], (2) the order denying discovery prevents a
party from having a fair opportunity to litigate his or her case [citation], or
(3) the ruling compelling discovery would violate a privilege
[citations].’ [Citation.]†(OXY
Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 886
(OXY Resources), quoting
Cal.App.4th 1050, 1061; see also Toshiba
America, supra, 124 Cal.App.4th
at p. 767.)
II.
Murray
argued below as a threshold matter that the People lacked standing to challenge
the SDT. He does not renew that argument
here.
We observe that it is unclear
whether the People had standing to file the motion to quash the SDT on
Stimson’s behalf. As explained in
Cal.4th 1068, 1078 (Kling), while
“the court may desire briefing and argument from the People about the scope of
the third party discovery [citation],†the People have the right to move to
quash “ ‘so that evidentiary privileges are not sacrificed just because the
subpoena recipient lacks sufficient self-interest to object’ [citation] or is
otherwise unable to do so.
[citation].†The victim is not a
party to the case, and the People are not counsel for the victim. (See § 684; see also People v. Superior Court (Barrett)
(2000) 80 Cal.App.4th 1305, 1313 (Barrett).) Although the People may file a motion to
quash in order to prevent prejudice to their own case (Kling, at p. 1078), here, they failed to explain how their case
against Murray would have been
compromised, or how any privileges would be violated, if Stimson were required
to produce the documents sought in the SDT.
Nonetheless, Murray
does not renew his standing argument here, and we deem the argument
abandoned. (People v. Combs (2004) 34 Cal.4th 821, 845.) We will proceed by assuming without deciding
that the People had standing to assert the objections to the SDT that were
considered by the trial court.
III. Order Quashing the SDT
The People asserted below that the
SDT should be quashed because Murray had no legal right to subpoena a third
party in the criminal proceeding. Although they now concede that this position
lacks merit, they nonetheless argue that the court acted properly in quashing
the SDT because Murray did not make a showing of good cause in support of the
SDT. We address both positions below.
A. A Criminal Defendant May Issue Third Party SDT
The People argued in their motion
that the SDT was “fatally flawed†because (1) “[n]o party in a criminal
action can subpoena a third party in any manner other than as specified in
[Evidence Code section] 1560,†and (2) that code section “only requires
businesses . . . to comply with an SDT.â€
They argued that because Stimson was “an individual homeowner,†he could
not be ordered to comply with the SDT.
The People reiterated in supplemental briefing that the SDT should be
quashed because Stimson was not a business entity upon which an SDT could be
served by a criminal defendant. Murray,
in multiple memoranda and in argument made at the third hearing, argued
persuasively that the People’s contention was without merit. The court nonetheless granted the motion to
quash based upon its determination that section “1326 does not authorize the
defense to issue subpoenas to individuals, non-businesses. I’m finding on that basis that there is no
authority for the issuance of the subpoena to the individual victim in this
case.â€
In his petition, Murray argues (as
he did below) that sections 1326 and 1327, as well as decisional authority,
plainly allow a criminal defendant to subpoena records from a third party,
regardless of whether that third party is a business. He is correct.
Section 1326, subdivision (a)
provides in part: “The process by which
the attendance of a witness before a court or magistrate is required is a
subpoena. It may be signed and issued by
any of the following: . . . (4) The
attorney of record for the defendant.â€
Section 1327 identifies the format of the subpoena and provides, in
part: “If books, papers, or documents
are required, a direction to the following effect must be contained in the
subpoena: ‘And you are required, also,
to bring with you the following’ (describing intelligibly the books, papers, or
documents required).†Together, sections
1326, subdivision (a) and 1327 authorize a criminal defendant, through counsel,
to prepare and issue a subpoena to direct a witness to appear before a court
with documents. (See
“Sections 1326 and 1327 set forth the procedure for either the
prosecutor or the defendant to obtain discovery records possessed by third
parties.â€)
party in a criminal case to serve a subpoena duces tecum requiring the person
or entity in possession of the materials sought to produce the information in
court for the party’s inspection.†(
Cal.4th 1033, 1045 (Alford).)
As the high court has held: “That the defense may issue subpoenas duces
tecum to private persons is implicit in statutory law (Pen. Code, §§ 1326,
1327) and has been clearly recognized by the courts for at least two
decades. (Millaud v. Superior Court (1986)
182 Cal.App.3d 471, 475-476; Pacific Lighting Leasing Co. v. Superior Court (1976)
60 Cal.App.3d 552, 559-566.)†(People
v. Hammon (1997) 15 Cal.4th 1117, 1128 (Hammon).) Thus, for example, in Rubio v. Superior
Court (1988) 202 Cal.App.3d 1343, the Court of Appeal granted a criminal
defendant’s petition for writ of mandate compelling the trial court to uphold a
subpoena duces tecum issued to the parents of the alleged victim.
In the People’s informal opposition
to the petition, they concede that their “position below that an SDT cannot be
served on a private individual . . . is incorrect, as is the trial court’s
holding in that regard.†Indeed, they
cite Hammon, 15 Cal.4th at page 1128
in support of this concession.
The court erred in granting the
People’s motion to quash the SDT on the ground that “there [was] no authority
for the issuance of the subpoena to the individual victim in this case.†We will address the additional ground
asserted here by the People in support of the court’s order.
B. Whether
Although the People concede that
the legal basis upon which they brought the motion to quash below lacks merit,
they nonetheless assert in their informal opposition that the court properly
quashed the SDT. They argue that Murray
failed to present good cause in support of the production of the documents
sought in the SDT and therefore the court properly quashed the SDT. The fact that the court’s order was made on a
legal basis which they concede was invalid is, they argue, of no
consequence.
The People’s contention lacks
merit. Here, the clear reason for the
court’s order was its belief that a criminal defendant may not issue and serve
an SDT upon a third person which is not a business. The thrust of the People’s argument—and the
basis of the court’s ruling—was the blanket proposition that there was no legal
authority supporting a criminal defendant’s right to subpoena the records of a
third party (non-business) witness. As we have discussed, ante, this legal position is erroneous.
The court did not reach the
underlying point of whether there was sufficient justification for requiring
Stimson to produce the records sought by Murray in the SDT. While Murray repeatedly asserted his legal
position below that a criminal defendant has the right to subpoena the records
of any third party witness, he also repeatedly indicated that he was prepared
to make a factual showing of good cause in support of the SDT in camera upon
the court’s request. But as aptly argued
by Murray: “[T]he Superior Court ruled
that there was no proper subpoena recipient, and so Mr. Murray had no opportunity
to make such a [good cause] showing.â€
The court may order an in camera review
of the documents produced in response to a defendant’s SDT, and while the
People or any person or entity objecting to release of the documents should be
given notice of the hearing, the defense is not required to provide the
prosecution with its theory of why the documents are relevant. (See Kling,
supra, 50 Cal.4th at pp. 1079-1080;
conduct some or all of the hearing concerning the defendant’s entitlement to those
records ex parte in order to safeguard privileged information or attorney work
product.†(Kling, at pp. 1079-1080.) As
noted, Murray below indicated repeatedly that he was prepared make a factual
showing in support of his SDT, should the court ask him to. The court never got that far, instead
concluding that Murray had no right to issue the SDT.
The People argue that “only after
Petitioner declined to make a showing of relevance†did the court order the SDT
quashed. This is an inaccurate
representation of what transpired at the third hearing on the motion. The court stated clearly that its reason for
granting the People’s motion was its view that a criminal defendant was not
authorized to issue and serve an SDT on a (non-business) third party. While the court indicated that a criminal
defendant would be entitled to have an in camera hearing to determine whether
it would be appropriate to have the court
issue a subpoena, it is clear that it was proposing a procedure different from
one in which a criminal defendant presents in camera its justification for
production of records the defendant
subpoenas (assuming there is an appropriate objection lodged on grounds of
relevance, privilege, privacy, etc.).
Defense counsel indicated during the third hearing that he did not
object to a procedure by which Murray, consistently with Kling, supra, 50 Cal.4th
at pages 1079-1080, would make an in camera showing in support of an SDT
objected to the procedure suggested by the trial court under which (based upon
the erroneous theory that a criminal defendant may not issue and serve an SDT
upon a third party) the defendant would have to make a threshold showing in
order for the court itself to issue a subpoena.
The People’s position here that the
court properly granted the motion to quash the SDT because Murray failed to
make a showing of good cause is without merit.
D. Conclusion
Although writ review of discovery
rulings is generally disfavored (O’Grady,
supra, 139 Cal.App.4th at p. 1429),
the petition here challenges a trial court order which blocked any attempt by
Murray to conduct discovery to which he is statutorily entitled. In short, (1) the People have conceded that
the legal basis upon which they moved to quash the subpoena (and which was the
ground relied on by the trial court) lacks merit; and (2) the People’s position
asserted here that the court properly quashed the SDT because Murray failed to
make a good cause showing also lacks merit.
In this instance, mandamus is
appropriate. The court’s ruling deprives
Murray of the ability to subpoena third parties. As such, “ ‘the order denying discovery
[potentially] prevent[ed] a party from having a fair opportunity to litigate
his . . . case [citation] . . .’ †(
Because the order was based upon an erroneous legal conclusion—i.e.,
that a criminal defendant was not permitted to issue and serve subpoenae duces
tecum on third party witnesses—it constituted an abuse of discretion. (Toshiba
America, supra, 124
Cal.App.4th at p. 768; cf.
(2008) 43 Cal.4th 737, 746, 755 [because trial court’s order recusing a
number of prosecutors was founded on erroneous legal position, order constituted
abuse of discretion requiring reversal].)
Accordingly, we will grant Murray’s petition for writ of mandamus.
DISPOSITION
Respondent superior court erred in
its order quashing the subpoena duces tecum issued and served by Murray
directing the third party witness Stimson to produce specified documents. Accordingly, let a peremptory writ of mandate
issue commanding respondent superior court to vacate its order and enter a new
order denying the People’s
motion to quash. Upon
finality of this opinion, the temporary stay issued by this court is vacated.
Márquez,
J.
WE
CONCUR:
Premo, Acting, P.J.
Mihara, J.
statutory references are to the Penal Code unless otherwise specified.
Attorney was not included among the exhibits to the petition for writ of
mandate. There appears to be no dispute
regarding the nature of the charges alleged in the information. Murray
was also charged with charging an excessive down payment in a home improvement
contract (Bus. & Prof. Code, § 7159.5), but that count was dismissed
by the court.
