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City of Woodlake et al v. Tulare County Grand Jury

August 1, 2011


(Super. Ct. No. VCU237194) APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge.

The opinion of the court was delivered by: Detjen, J.



The Tulare County Grand Jury appeals from an order quashing a subpoena duces tecum it issued to the Woodlake Police Department. The trial court based its ruling on the fact that the subpoena duces tecum was served without a Code of Civil Procedure section 1985 affidavit of good cause.*fn1 We reverse the trial court's order. When a grand jury seeks records of a public agency to which it has been given express statutory access, its demand for production of those documents is not a section 1985 subpoena duces tecum. As such, a supporting affidavit of good cause is not required.


On January 16, 2009, members of the Woodlake police force were shooting firearms at a shooting range owned by the Exeter Police Department. A bullet, apparently fired by one of the Woodlake officers, left the range and struck a civilian, Leland Perryman, approximately a mile away. Appellant Tulare County Grand Jury (hereafter the grand jury) sought to investigate certain aspects of this incident. On April 8, 2010, it issued subpoenas to several officers of the Woodlake Police Department and to its chief, John Zapalac. It also issued a subpoena duces tecum to the Woodlake Police Department ordering the department to present the following documents for inspection by the grand jury: "1. Range Rules used at the Exeter Shooting Range. [¶] 2. Course layout for the training exercise used on 1-16-09 at the Exeter Range. [¶] 3. Certification of the range master who planned this training exercise. [¶] 4. Internal Investigation report of 1-16-09 incident. [¶] 5. Training schedule for all Police Officers who used the Range on 1-16-09."

The City of Woodlake, the Woodlake Police Department, and John Zapalac brought an action that was ultimately treated as a motion to quash the subpoenas. The grand jury opposed the motion. By written order filed June 3, 2010, the trial court determined that the subpoenas directed to the individuals were valid and enforceable. It concluded, however, that the subpoena duces tecum was invalid because it failed to comply with section 1985.*fn2


A. Appealability.

Respondent contends the order quashing the subpoena duces tecum is not appealable because it "is not a final order as there has been no final adjudication between the parties." It cites Ahrens v. Evans (1941) 42 Cal.App.2d 738, 739, in support of this contention.

Ahrens v. Evans, supra, 42 Cal.App.2d 738, involved an appeal from an order denying a motion to quash a subpoena served on a nonparty in proceedings to discover property upon which the judgment creditor could execute. The appellate court determined that the order was not appealable because it was an interim order in a supplementary proceeding. (Id. at p. 739.) "In the absence of statutory authority therefor an appellate tribunal should not review an order of the lower court unless it be a final determination of the subject matter." (Ibid.)

In the present case, however, the appeal is not from an order enforcing the subpoena nor is it merely an order concerning discovery in an ongoing action. Instead, this appeal is from an order denying enforcement of the subpoena in which enforcement or non-enforcement was the only issue before the superior court. The motion to quash was, in effect, a freestanding proceeding that sought no further relief, similar to a motion to obtain a subpoena to aid out-of-state litigation: "Generally, discovery orders are not appealable. [Citation.] That generalization is inapplicable, however, where the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue." (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 885-886.) Similarly, in Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 13, where the city sought an order to enforce an investigative subpoena by a legislative body, the resulting order was immediately appealable even though a similar civil discovery order would not have been. The Supreme Court stated: "[W]e ... have rejected the analogy between investigative subpoenas and discovery orders." (Ibid.)

In the present case, although the parties have not provided us with the order accomplishing the dismissal of the original petition and complaint filed by respondent, it is clear the trial court, by stipulation or otherwise, dismissed those two causes of action and treated the matter as a special proceeding to quash the subpoenas issued by appellant.*fn3 Respondent does not contend in this appeal that its own petition, as initially framed, is still pending. Nor does respondent contend further proceedings are contemplated in the trial court, the traditional criterion for finality of an order. (See Dana Point Safe Harbor Collective v. Superior Court, supra, 51 Cal.4th ...

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