Merging Capital, Inc., et al., Appellants, v. Department of Corporations, Respondent.
Court of Appeal, Second District, Division 5, California
Aug 20, 1996
48 Cal. App. 4th 1804 | 56 Cal. Rptr. 2d 522
Appellant Merging Capital, Inc. (MCI) is a California corporation whose sole shareholder, officer, and director is Timothy Traub. Appellant Link 900 Partners (Link) is a general partnership in the formation stage. Traub is the custodian of records for both entities.
On or about November 6, 1995, the California Department of Corporations (DOC) issued a subpoena duces tecum to the custodian of records for MCI and Link. Before producing the documents, Traub requested assurances from the DOC that his testimonial act of producing the documents would not be used against him in any subsequent criminal prosecution. The DOC refused to provide such assurances. Consequently, appellants refused to produce the subpoenaed documents “because, to do so, may violate the custodian‘s Fifth Amendment right against self-incrimination.”
On January 23 and 24, 1996, pursuant to
MCI and Link appealed that order, challenging the legality of the trial court‘s order compelling the custodian of records to produce the documents specified in the subpoena. Appellants argue: “If the order is not reversed or modified, the custodian of records may be forced to involuntarily incriminate himself in a future criminal proceeding.”
Because an order to produce is not among the appealable orders set forth in
DISCUSSION
(1) Subject to certain narrow constitutional limitations, there is no right to appeal. (Lindsey v. Normet (1972) 405 U.S. 56, 77 [31 L.Ed.2d 36, 52-53, 92 S.Ct. 862, 876]; Trede v. Superior Court (1943) 21 Cal.2d 630, 634 [134 P.2d 745].) The California Supreme Court has repeatedly held that the right to appeal is wholly statutory. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709 [135 Cal.Rptr. 392, 557 P.2d 976], disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 34-35 [164 Cal.Rptr. 1, 609 P.2d 468] [“a judgment or order is not appealable unless expressly made so by statute“]; Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78 [65 Cal.Rptr. 65, 435 P.2d 825] [“a party possesses no right of appeal except as provided by statute“]; People v. Keener (1961) 55 Cal.2d 714, 720 [12 Cal.Rptr. 859, 361 P.2d 587], disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 844 [52 Cal.Rptr. 4, 415 P.2d 819] [“an order is not appealable unless declared to be so by the Constitution or by statute“]; People v. Valenti (1957) 49 Cal.2d 199, 204 [316 P.2d 633], disapproved on another point in People v. Sidener (1962) 58 Cal.2d 645, 647 [25 Cal.Rptr. 697, 375 P.2d 641] [“the right of appeal is statutory and a judgment . . . is not appealable unless it is expressly made so by statute“]; Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728 [192 P.2d 916] [“the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable“]; Trede v. Superior Court, supra, 21 Cal. 2d at p. 634 [there being no constitutional right of appeal, “the appellate procedure is entirely statutory and subject to complete legislative control“]; Superior Wheeler C. Corp. v. Superior Court (1928) 203 Cal. 384, 386 [264 P. 488] [“right of appeal is statutory and may be granted or withheld“].)
(2a) Both parties concede that the Legislature has not made appealable an order to produce. Nonetheless, they argue that this court should review the trial court‘s order to produce, for various reasons.
According to the DOC, “The appealability issue has been dealt with in either one of two ways or ignored completely.” Some appellate courts have concluded that an order issued pursuant to
Of course, these latter cases, which either avoid the issue altogether or “assume” appealability of the order, are of no persuasive value. (3) It is an axiom of appellate practice that a case is not authority for an issue not considered therein. (People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7 [254 Cal.Rptr. 811, 766 P.2d 577]; People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580].) (2b) Neither do the other cases cited by the parties convince us of the appealability of the order to compel.
The Fourth District Court of Appeal recently considered the appealability of an order compelling compliance with a subpoena. (Millan v. Restaurant Enterprises Group, Inc., supra, 14 Cal.App.4th 477, 485.) In that case, the Department of Labor Standards Enforcement (DLSE) issued a subpoena duces tecum to a corporation, the Restaurant Enterprise Group, Inc. (REG), which failed to comply with the subpoena. Upon petition to the superior court, REG was ordered to produce the subpoenaed documents. REG failed to comply with that order, but rather appealed it.
Following briefing on appeal, the DLSE filed a motion to dismiss the appeal, or, in the alternative, to treat the appeal as a petition for writ of mandate, contending that the order compelling compliance was not an appealable order. After limited analysis, the Court of Appeal concluded that “the better view is that `orders requiring compliance with the subpoenas are appealable as final judgments in special proceedings. . . .\’ [Citations.]” The sole reason articulated for this conclusion was that “the Supreme Court is among those courts which have assumed the appealability of such orders, . . .” (Millan v. Restaurant Enterprises Group, Inc., supra, 14 Cal.App.4th at p. 485.) As noted above, this is not compelling authority. Moreover, both the parties and the court in Millan assumed that the order to compel was immediately reviewable, but debated only whether that review was properly had by appeal or by writ. (Ibid.; cf. Franchise Tax Board. v. Barnhart, supra, 105 Cal.App.3d 274, 277; Knoll v. Davidson (1974) 12 Cal.3d 335 [116 Cal.Rptr. 97, 525 P.2d 1273].) Neither was the court concerned with whether REG was an “aggrieved party” within the meaning of
Both parties rely on Olson v. Cory (1983) 35 Cal.3d 390 [197 Cal.Rptr. 843, 673 P.2d 720] in which, we are told, the Supreme Court reiterated its
In Olson v. Cory, supra, after concluding that the order appealed from was not appealable, the Supreme Court determined that the appellants lacked an adequate remedy at law, and therefore treated the appeal as a petition for writ of mandate. (Olson v. Cory, supra, 35 Cal.3d at p. 400.) No similar showing has been made here. To the contrary, in this case, MCI and Link were ordered to produce documents, they did not comply with that order, and nothing happened. Indeed, appellants presumably want to maintain the status quo: They do not want to produce the subpoenaed documents, and they do not want to suffer an adverse consequence as a result of their refusal to produce those documents. Consequently, any ruling rendered by this court would be in the nature of an advisory opinion. That is to say, if we were to rule in favor of the DOC, we would simply be advising the appellants that, if the DOC pursues contempt proceedings, and the trial court finds MCI and Link in contempt, we will uphold that ruling on appeal. Similarly, our decision in favor of appellants would amount to no more than our advice to the DOC that contempt proceedings will ultimately prove fruitless.
Finally, we note that, contrary to the parties’ arguments, the interests of judicial economy and efficiency are not served by consideration of matters not properly before the court. The Supreme Court recently commented on this phenomenon in the context of criminal appeals of guilty pleas in the absence of a certificate of probable cause as required by
In sum, if and when appellants’ refusal to comply with the trial court‘s order results in an adverse consequence to them, they may seek the intervention of the appellate court, by appeal or by writ, as may be appropriate under the circumstances. Until that time, they have no cause to complain.
DISPOSITION
The appeal is dismissed.
Turner, P.J., and Godoy Perez, J., concurred.