Opinion
Rehearing Denied Oct. 15, 1964.
For Opinion on Hearing, see 42 Cal.Rptr. 110, 398 P.2d 150.
Epport & Delevie, Victor M. Epport, Los Angeles, for petitioner.
No appearance for Respondent.
James H. Denison and Edward S. Stutman, Los Angeles, for real party in interest.
HERNDON, Justice.
Crest Catering Company, a corporation, petitioner herein, seeks a writ of prohibition restraining respondent court from enforcing its order of June 23rd, 1964, which requires the production of certain documents as a part of the discovery proceedings in an action filed against it by Carl Kirsten, real party in interest, hereinafter referred to as Kirsten.
From the various documents and exhibits filed herein, it appears that Crest is an employer operating a restaurant in the City of Los Angeles and that it has a labor contract with a union. Under this contract, It is alleged in Kirsten's memorandum filed herein that under the terms of the union contract petitioner, as an employer, not only agreed to make contributions to the funds at fixed rates per hour for each of its employees, but also agreed to be bound by the terms of certain trust instruments establishing the funds.
Pursuant to the authority conferred by the terms of the trust agreements, Kirsten demanded an audit to ascertain whether or not petitioner had correctly and honestly reported and paid the contributions due to the funds. An initial audit was conducted for the years 1960-1961, inclusive, records for which were then available and in petitioner's possession. This audit allegedly disclosed the fact that petitioner had not correctly reported to the fund and that a deficiency in excess of $8,900 was disclosed. It is further alleged that petitioner acknowledged this deficiency, and that it was paid. An audit was then demanded for the years 1958 and 1959. The present action follows this demand.
In the course of this action, Kirsten directed interrogatories to petitioner seeking the necessary information regarding its employees during the period in issue in order to ascertain the correct amount dueunder its alleged contract. Petitioner replied that all of its books and records for this period had been destroyed by fire. The completeness and accuracy of the answers given by petitioner in response to the several sets of interrogatories propounded herein soon became the subject of a sharp and acrimonious dispute between the parties. Kirsten then sought and obtained the order, the propriety of which is challenged in this proceeding.
This order provided as follows: '* * * [I]t is ordered that defendant [petitioner], within 20 days of the filing of this order, shall obtain and produce for plaintiff's [Kirsten's] inspection and copying (1) copies of defendant's quarterly Contribution Return and Report of Wages Under the Unemployment Insurance Code submitted to the California, State Department of Employment for the fourth quarter of the year 1958 and for each of the four quarters of the year 1959, and (2) copies of defendant's Quarterly Report of Wages Taxable under the Federal Insurance Contributions Act (for Social Security) Schedule A (Form 941) for the fourth quarter of the year 1958 and for each of the four quarters of the year 1959. It is further ordered that, in the event defendant does not now have any of said documents in its possession, it shall procure copies thereof from each of the several governmental agencies to which said reports were submitted.'
The question of the propriety of requiring production of such reports to governmental agencies was settled by the decision of our Supreme Court in Webb. v. Standard Oil Co., 49 Cal.2d 509, 319 P.2d 621. While the rule therein established represents the distinct minority view on the subject (70 A.L.R.2d 240), it was so definitely enunciated that we deem it beyond the province of this court to do more than enforce it. If the clear mandate of the Webb decision is to be softened or if exceptions to the rule therein enunciated are to be created, it must be done by the Supreme Court itself.
In Webb the court was called upon to determine whether the 'privilege' created by sections 19282 and 19283 of the Revenue and Taxation Code prevented a party to an action from requiring his adversary to produce copies of state and federal income tax returns which otherwise would be admissible in evidence. The relevant sections were quoted as follows:
'Section 19282 of the Revenue and Taxation Code provides: 'Except as otherwise The court's conclusion was expressed in the following clear terms: 'The purpose of the amended statutory provisions prohibiting disclosure is to facilitate tax enforcemetn by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes. If the information can be secured by forcing the taxpayer to produce a copy of his return, the primary legislative purpose of the secrecy provisions will be defeated. The effect of the statutory prohibition is to render the returns privileged, and the privilege should not be nullified by permitting third parties to obtain the information by adopting the indirect procedure of demanding copies of the tax returns. * * *
'At the time of the fire, both the state and federal income tax legislation permitted deductions for the loss of property destroyed by fire and not compensated for by insurance or otherwise, and it may be assumed that the respective returns of a taxpayer for the same period will contain substantially the same information. Under the circumstances, forcing disclosure of the information in the federal tax return would be equivalent to forcing disclosure of the state returns and would operate to defeat the purposes of the state statute. It follows that the trial court did not err in refusing to require production of copies of either the state or federal tax returns.' (49 Cal.2d pp. 513-514, 319 P.2d p. 624.)
The statutes creating the 'privilege' asserted by petitioner in the instant action are sections 1094 and 2111 of the Unemployment Insurance Code. These sections provide as follows:
'Except as otherwise specifically provided in this division the information furnished to the director by an employing unit, pursuant to this division, shall be for the exclusive use and information of the director in discharge of his duties and shall not be open to the public, nor admissible in evidence in any action or special proceeding, other than one arising out of the provisions of this division. Such information may be tabulated and published in statistical form for the use and information of state departments and the public; except that the name of the employing unit or of any worker shall never be divulged in the course of such tabulation or publication.' (Emphasis added.) (Section 1094.)
'Except as otherwise provided in Section 1094 information obtained in the course of administration of this division is confidential and shall not be published or open to public inspection in any manner. Any director, deputy director, member of the Appeals Board, member of State Advisory Council or employee of the department who violates this section is guilty of a misdemeanor.' (Section 2111.)
The legislative purpose found to exist in Webb is far more manifest in the sections presently relevant. In fact, it is expressly provided therein that the returns here sought, and the information therein contained 'shall not be * * * admissible in evidence in any action or special proceeding, other than one arising out of the provisions of this division.' Since the present action is not one arising under that division, the order requiring the production of these returns herein must be annulled. Since the federal returns also sought herein 'will contain substantially the same information', they are likewise Webb v. Standard Oil Co.,
In his response to the instant petition, and particularly during oral argument, Kirsten urged that petitioner had 'waived' its statutory privilege because its contract with the union bound it to the terms of the trust agreements. However, the cited provisions of the trust agreements (assuming that petitioner was bound by them and was, in fact, aware of their specific terms) provided only (1) that each employer 'shall promptly furnish all necessary information upon demand to the Trustees or the Administrator' and (2) that, in order to insure correctness of the employer's reports, the Trustees may, at the funds' expense, 'audit the payrolls for the sole purpose of determining the correct amount of contributions owed the Funds.'
Section 3513 of the Civil Code provides: 'Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.' It is unnecessary for us to decide whether or not the privilege created by sections 1094 and 2111 of the Unemployment Insurance Code is an 'advantage of a law intended solely for [the taxpayer's] benefit' because it is manifest in any event that there has been no showing whatsoever tending to indicate an intentional relinquishment thereof in the instant case. Since the provisions of the trust agreements relied upon make no reference whatsoever to the specific code sections creating the privilege, or even to tax returns of any variety, it is apparent that they do not even tend to suggest the existence of the requisite intent to waive any advantage resulting therefrom.
The 'primary essentials of a waiver are knowledge and intent. Before one may be deemed to have waived a right granted by statute he must be shown to have knowledge of the right and an intent to waive or forego it.' (In re De Neef, 42 Cal.App.2d 691, 694, 109 P.2d 741, 742; Record v. Indemnity Ins. Co., 103 Cal.App.2d 434, 445, 229 P.2d 851.)
'Waiver (as distinguished from estoppel, which is not claimed here) requires an actual intent to relinquish a right. [Citation.] Clear showing of the intent to relinquish must be made, and doubtful cases will be decided against a waiver. Greninger v. Fischer, 81 Cal.App.2d 549, 184 P.2d 694.' (Verdier v. Verdier, 133 Cal.App.2d 325, 332, 284 P.2d 94, 98; see also Roberson v. Industrial Acc. Com., 146 Cal.App.2d 627, 629, 304 P.2d 202.)
'[W]aiver is the intentional relinquishment of a known right.' (Henderson v. Drake, 42 Cal.2d 1, 5, 264 P.2d 921, 923.) 'There can be no waiver unless the relinquishment is intentional or is the result of an act which, according to its natural import, is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.' (Rheem Mfg. Co. v. United States, 57 Cal.2d 621, 626, 21 Cal.Rptr. 802, 805, 371 P.2d 578, 581.)
Therefore, as heretofore noted, even if we were to assume that petitioner had actual or constructive knowledge of the trust agreements, since these agreemens, in whose preparation he had no part, make no reference whatsoever to the statutes and resulting privilege here under consideration, they wholly fail to either prove petitioner's knowledge of its privilege or any intentional relinquishment thereof.
The peremptory writ of prohibition is granted.
FOX, P.J., and ROTH, J., concur.