Tatkin v. SUPERIOR COURT OF LOS ANGELES CTY.

326 P.2d 201, 160 Cal. App. 2d 745, 1958 Cal. App. LEXIS 2181

Opinions

KINCAID, J. pro tem.

Footnotes

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Petitioner, plaintiff in an action pending in the Superior Court of Los Angeles County, seeks a writ of mandate directing the respondent court to set aside an order sustaining defendants’ refusal to answer certain questions in a pretrial deposition and to enter an order compelling defendants to answer these questions.

Demurrers having been overruled, a third amended complaint was filed and the defendants, American Medical Association, Los Angeles County Medical Association, and certain named individuals, have filed their answers thereto.

The third amended complaint of plaintiff contains three causes of action and alleges generally that since August 1, 1953, plaintiff has been and is a duly licensed doctor of medicine authorized to practice medicine in the State of California; that on September 21, 1954, plaintiff was notified that his application for membership in the defendant Los Angeles Medical Association had been refused; that since then he has suffered damages as a result of the acts and conduct of defendants. The plaintiff has affirmatively alleged that the defendants have conspired and combined to dominate and control the practice of medicine in Los Angeles County in such a manner as to prevent competition between licensed doctors in the area and members of the defendant Los Angeles County Medical Association particularly when the licensed doctor has come from out of state; that pursuant to this conspiracy and combination, the defendant Los Angeles Medical Association has established a minimum scale of fees to be charged for services rendered by its members to the public; that pursuant to the said conspiracy and combination, the defendants have not left open membership in the defendant Los Angeles Medical Association to doctors of medicine of even the highest professional and ethical qualifications; that defendants have established disciplinary sanctions against members of the defendant Los Angeles County Medical Association who consult with or cooperate with doctors of medicine who are not members of the defendant association; and that pursuant to the said conspiracy and combination, a grading system of hospitals has been set up, the result of which is that only members of the defendant . Los Angeles County Medical Association are eligible for mem- ■ bership on the staffs of over 90 per cent of the hospitals in the Los Angeles County area.

Plaintiff further alleges that his professional and ethical qualifications are of the highest calibre; that he was, prior to August 1, 1953, when he came to Los Angeles County, a member of the Yakima County Medical Association, Yakima, 1 Washington; that while practicing in Los Angeles County, : he has at all times charged fees for treatment lower than those prescribed as minimum by the defendant Los Angeles Medical Association; that he made his services available to the public at a greater number of hours per day and days per week than the members of the defendant association practicing in his community; that he applied for, and was denied, membership in the defendant Los Angeles Medical Association without any reasons having been given for his rejection; that thereafter he was expelled from the staff of the Behrens Memorial Hospital even though his services had been completely satisfactory; that when he attempted to construct a hospital of his own in the community in which he practiced the members of the defendant Los Angeles County Medical Association refused to cooperate with him in any way, and actively took steps to make the construction impossible by opposing the granting of a zoning variance by the city commission.

Plaintiff caused a subpoena duces tecum to be issued to defendant William F. Quinn, secretary-treasurer of defendant Los Angeles County Medical Association, requiring him to appear for deposition and to produce the following: All letters written by any member of the Los Angeles County Medical Association or Yakima County Medical Association or by any officer of either association regarding Dr. Sylvan 0. Tatkin; all investigation report or reports by investigator or investigators regarding the professional, personal, ethical or moral background of Dr. Sylvan 0. Tatkin; all documents presented to the council of the Los Angeles County Medical Association at any meeting pertaining to any application of Dr. Sylvan 0. Tatkin for membership or used by the council or any member thereof in connection with the determination of Dr. Sylvan 0. Tatkin’s qualification for membership in the Los Angeles County Medical Association; all other books, records, papers, documents and files of every type or nature whatsoever obtained by the Los Angeles County Medical Association in connection with its deliberations on Dr. Sylvan 0. Tatkin’s application for membership in the Los Angeles County Medical Association.

Quinn, on advice of counsel, refused to answer any and all questions put to him concerning the criteria, rules, regulations or policies of the defendant Los Angeles County Medical Association in passing on membership applications and all questions put to him concerning the consideration of plaintiff’s application for membership. He also refused to produce any of the documents subpoenaed, as the documents dealt with the same subject matter as the questions, and both the documents and the questions were objected to on the ground of irrelevancy and immateriality.

The defendant’s refusal to answer was thereupon duly certified to respondent court resulting in an order to answer questions numbered one and two but sustaining objections to the remaining 21 questions.

Since an appeal from the final judgment would not afford plaintiff an adequate remedy for correcting the order of respondent court sustaining said defendant’s refusal to answer the questions on deposition, mandamus is the proper remedy. (I.E.S. Corporation v. Superior Court, 44 Cal.2d 559, 564 [283 P.2d 700]; McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 392 [159 P.2d 944].)

As was said in the McClatchy case (pp. 393, 394, 395) : “Ordinarily the trial court has no discretion to refuse to exercise its powers so far as necessary to secure to a litigant the right to a deposition in the cases defined by the code. (Citations.) The language of section 2021 of the Code of Civil Procedure providing that ‘The testimony of a witness . . . may be taken by deposition’ confers upon litigants the right to take depositions. (Citation.) . . . By refusing to compel a witness to answer proper questions, a trial court may effectively deny a litigant the right to take a deposition, since a right without means of enforcement, if such can exist, is of little practical value. Consequently, trial courts have been directed by writ of mandate to compel witnesses to answer questions on the taking of their depositions on the theory that it is their judicial duty to secure to a party the means of obtaining in advance of the trial information concerning the issues and the means of producing at the trial the evidence necessary to sustain his action or defense. (Citations.) . . .

“ The respondent court declined to compel plaintiff to answer the questions upon the ground that they were directed to defenses which had been eliminated by the ruling on demurrer, and that therefore the answers would be incompetent and immaterial as not within the issues. While the order on demurrer ruled out certain issues for the time being, the status of the pleadings as so limited is not the exclusive measure of the scope of inquiry on deposition. Different principles govern the determination of the materiality of evidence sought to be obtained by means of depositions and the admissibility of evidence offered upon the trial. The relevancy of evidence on the taking of a deposition is to be determined by the subject matter of the action and by the potential as well as actual issues in the case. (Citations.) . . . The fact that the ruling on demurrer eliminated the issues embraced by the deposition does not prevent such issues from being classed as potential. The sustaining of a demurrer relates only to the issues raised by the pleadings as they exist at the time of the ruling on the demurrer. A trial court may nevertheless properly permit an amendment to the pleadings during the course of trial; it may reconsider its ruling during trial; or the ruling may be reversed upon appeal.”

And as said in I.E.S. Corporation v. Superior Court, supra, 44 Cal.2d 559, at pages 562, 563: “In the interest of full disclosure, the witness in a deposition taken pursuant to section 2021, subdivision 1, of the Code of Civil Procedure must answer all questions seeking nonprivileged information that is material to the subject matter of the pending action (citations), and he cannot block the interrogation by contending that it is a ‘fishing expedition’ or by urging the secrecy of his methods of doing business. At the same time, the taking of a deposition must not be abused (citation), and the witness need not answer questions that serve no proper purpose or are irrelevant. (Citations.) . . .

“Similarly, plaintiff was entitled to learn the sources of the goods to determine whether they were sold to defendant in the condition and at the prices represented and whether the sellers had conspired with defendant to defraud plaintiff. ’ ’

The trend of judicial decisions is to relax the rules which relate to the taking of evidence by ancillary proceedings. (Dowell v. Superior Court, 47 Cal.2d 483, 486 [304 P.2d 1009]; Union Trust Co. v. Superior Court, 11 Cal.2d 449, 462 [81 P.2d 150, 118 A.L.R 259].)

In further indication of this trend, section 2021 of the Code of Civil Procedure has now been replaced by section 2016 which provides for the taking of the deposition of any person for the purpose of discovery, or for use as evidence in the action or for both purposes. Subsection (b) of section 2016 provides: “[Scope of examination.] Unless otherwise ordered by the court as provided by subdivision (b) or (d) of Section 2019 of this code, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. All matters which are privileged against disclosure upon the trial under the law of this State are privileged against disclosure through any discovery procedure. This article shall not be construed to change the law of this State with respect to the existence ■ of any privilege, whether provided for by statute or judicial decision, nor shall it be construed to incorporate by reference any judicial decisions on privilege of any other jurisdiction.”

In the light of these rules relating to discovery it is evident that unless the matters sought to be elicited by the refused questions are privileged against disclosure under the law of this state upon the trial of the action by plaintiff against defendants, the real parties in interest herein, or are clearly irrelevant as determined by the subject matter of such action and by the potential as well as actual issues in the case, the questions should be answered.

Plaintiff’s complaint is based on the theory that plaintiff, a qualified doctor, has been denied the use of hospital facilities and association with other doctors by reason of the individual defendants’ conspiracy to illegally limit these associations and the use of these facilities to members of the defendant Los Angeles County Medical Association. The gist of the action is that the effect of the domination of the practice of medicine in Los Angeles County by the defendant Los Angeles County Medical Association has been to remove a qualified practitioner from competition with those in the select body, and that defendants have in this manner engaged in a course of conduct constituting an illegal conspiracy in restraint of trade. In addition, plaintiff alleges a cause of action on the theory of an unjustifiable, concerted refusal to deal, and on the theory of an unjustifiable interference with contractual and advantageous relationships. Plaintiff is seeking damages for injuries caused to him by the tortious conduct of defendants. He is not seeking either directly or indirectly to compel the defendant association to admit him to membership.

In considering what would be relevant to this issue, it is plaintiff’s theory that the alleged practices of the defendant association, particularly those respecting the use of hospitals and the cooperation and consultation of member doctors of medicine with nonmember doctors of medicine, have been calculated to make it impossible for a nonmember to compete with a member of the association in the practice of medicine. It is plaintiff’s position that membership was denied to him in order to prevent him from competing successfully with members of the defendant association by charging lower rates for treatment, and working longer hours than other doctors in his community.

The basic issue presented by the pleadings in the instant case is the existence or nonexistence of a combination by the named defendants to restrain competition by the plaintiff.

The statutory privileges set forth in section 1881, Code of Civil Procedure, provide against the examining of a witness as to confidential communications between husband and wife, attorney and client, confessor and confessant, physician and patient, public officers and certain newspaper personnel. As said in Samish v. Superior Court, 28 Cal.App.2d 685, 695 [83 P.2d 305]: “Since the protection against privileged communications often leads to a suppression of the truth and to a defeat of justice, the tendency of the courts is toward a strict construction of such statutes. (Dwelly v. McReynolds, 6 Cal.2d 128, 131 [56 P.2d 1232]; 27 Cal.Jur. 44, § 30.) Unless the statute expressly extends the privilege to specific persons or classes, the law will not justify such individuals in refusing to disclose facts contained in documents which would otherwise be competent evidence in a particular proceeding. In the Dwelly case, supra, the court said:

“ 1 “The burden is upon the party seeking to suppress the evidence to show that it is within the terms of the statute.” (Citations.) The statements to be privileged and hence inadmissible must come within the express terms of the section. (Citations.) ’ ”

Measuring the matters here in question no privilege against disclosure is extended defendants by the provisions of section 1881, Code of Civil Procedure.

Defendants argue that public policy demands that documents, communications and information of the nature and type sought herein should be treated as confidential and not available for disclosure and inspection as desired by the petitioner. They cite Runyon v. Board of Prison Terms and Paroles, 26 Cal.App.2d 183 [79 P.2d 101], in support of their contention. This case involved letters and other communications sent voluntarily by various individuals to a public agency, the State Board of Prison Terms and Paroles, in connection with the hearing and determination of applications for parole of prisoners. The facts of the Runyon case are not analogous to a situation as here involved where communications are sent to a private voluntary association relating to the applications for membership therein and the action taken thereon.

In the case of I. E. S. Corporation v. Superior Court, supra, 44 Cal.2d 559, the complaint alleged that plaintiff entered into a series of contracts and options for the purchase of machinery from defendant. The complaint also alleged that defendant had conspired with various sellers of war surplus engines, and plaintiff’s former president to induce plaintiff to purchase nonexistent, inferior and highly overpriced machinery, and that defendant had made an extensive buying trip in which he carried on activities in furtherance of the conspiracy. In giving his deposition, defendant refused to reveal from whom, in what manner, and at what prices he had acquired the engines, or any questions dealing with the identity of his sources and the nature of his transactions with them. All refusals were on the ground that the questions were immaterial and irrelevant. In ordering the defendant to answer, the court stated (p. 563): . . [PJlaintiff was entitled to learn the sources of the goods to determine whether they were sold to defendant in the condition and at the prices represented and whether the sellers had conspired with defendant to defraud plaintiff.” (Emphasis added.) Implicit in the statement of the court is the proposition that the defendant was required to reveal his course of dealing with the other conspirators as that course of dealing related to the plaintiff because that was the only way in which the plaintiff could show that a conspiracy did or did not exist. In the instant case, the course of dealing between the alleged eoeonspirators respecting the plaintiff had the same relevancy and materiality as in the I.E.S. case in that it goes to the existence, nature and scope of the alleged conspiracy.

Defendants assert that the denial by the respondent court of the right of plaintiff to inquire, by means of depositions and subpoenas duces tecum, into the activities of the Los Angeles County Medical Association, its admissions committee and its council, was a responsible control of such right. More especially they contend that since the courts will not interfere in the internal affairs of a voluntary. association respecting applications for membership nor compel membership therein, questions or documents dealing with the reasons for petitioner’s denial of membership therein and related rules in general become immaterial and irrelevant. They cite cases to the effect that a voluntary association has the power to enact laws governing the admission of members and to prescribe the necessary qualifications for membership. Membership therein is a privilege which the society may accord or withhold at its pleasure, with which the courts will not interfere, even though the arbitrary rejection of the candidate may prejudice his material interest: Harris v. Thomas (Tex. Civ.App.), 217 S.W. 1068, 1076-1077; Medical Soc. of Mobile County v. Walker, 245 Ala. 135 [16 So.2d 321]; Chapman v. American Legion, 244 Ala. 553 [14 So.2d 225, 228]; Gold Knob Outdoor Adv. Co. v. Outdoor Adv. Ass’n (Tex.Civ.App.), 225 S.W.2d 645, 646-647; and Mayer v. Journeymen Stone-Cutters Ass’n, 47 N.J.Eq. 519 [20 A. 492, 494].

Harris v. Thomas, supra, a Texas case, was an action to restrain the defendant doctors from interfering with plaintiff’s practice in the defendant hospital and, in the alternative, for damages. Plaintiff, an osteopath, was practicing in the defendant hospital when the medical association recommended the staff system to the defendant hospital. The defendant hospital followed the recommendations of the local medical association as to what doctors should be on the staff. The recommendations included only those doctors who were members of the medical association and omitted plaintiff. Plaintiff by virtue of not being a member of the medical association, was thereafter denied the right to practice in defendant hospital. Plaintiff filed suit and obtained a temporary injunction. The trial court thereafter ordered the temporary injunction dissolved and plaintiff appealed. In affirming the order of the trial court, the appellate court said (p. 1076, 1077) : “. . . It seems to be appellant’s contention that his exclusion from the organization and appellees’ refusal to affiliate with him and holding that his license or diploma as an osteopath did not entitle him to fellowship with them influenced others against him and deprived him of the fruits of his preparation as a practitioner. If appellees were acting to further their legitimate purpose or to advance the practice of their profession, this, we think, would be justified, even if it had the result claimed by appellant. Unless the organization was itself illegal or the methods used by it were wrongful, appellant has no just complaint. ... It is provided by such association that an applicant for membership must be of good moral character and licensed to practice under the laws of the state of Texas; that he must not support or profess an exclusive system of medicine or advertise as such. The appellant was admittedly an osteopath, and his license to practice was obtained upon a diploma from a school of that system. His advertisement and card so gave his school of practice.

“Courts sometimes interfere where members have been wrongfully excluded or expelled, but as a rule they do not interfere with the right of an association to make laws or rules unless they are against good morals or violate the laws of the state. ... If it deemed appellant an osteopath, and that as such he was supporting an exclusive system, the association and its members were within their rights, under its rules, in rejecting him as a member. They also had the right to refuse to assist him in operations. They could, if they deemed it to the interest of medicine or surgery, or the welfare of humanity, agree among themselves not to assist appellant in surgery if they did so in good faith and with no intent to injure appellant. ... If without malice or evil intent the appellees did interfere with the privilege of appellant, if they did so to serve some legitimate right or interest of their own, they could do such acts themselves or cause others to do them so long as no definite legal right of appellant is violated.” - (Emphasis added.)

Medical Soc. of Mobile County v. Walker, supra, 16 So.2d 321, an Alabama case, was an action to restrain the medical society from admitting applicants for membership until the requirements of the society’s by-laws were complied with. In reviewing the rights of applicants to membership in a medical society, the court said (p. 324): “. . . Societies of the sort here considered have the right to make their own rules upon the subject of admission or exclusion of members, and these rules may be considered as articles of agreement, to which all who are members become parties. . . . They may make their own constitution and by-laws; and so long as they remain unchanged, each member is alike bound and shielded by them. ... Of course such constitution and by-laws, to be obligatory, must not contravene public law, nor any principle of public policy. ...” (Emphasis added.)

In Chapman v. American Legion, supra, 14 So.2d 225, an Alabama ease, plaintiffs petitioned for a writ of mandamus to require the American Legion, Alabama Department, to issue a charter for the establishment of a local post. The court examined the Acts of Congress incorporating the Legion and the pertinent provisions of the Legion’s constitution and bylaws and found them to establish minimum requisites for membership but that eligibility alone did not require a person’s acceptance. The court (p. 228) quoted from 7 Corpus Juris Secundum, Associations, page 56, section 23, “In other words, membership is a privilege which the society may accord or withhold at its pleasure, and a court of equity will not interfere to compel the admission of a person not regularly elected, even though the arbitrary rejection of the candidate may prejudice his material interests, where no rights of property or of person are affected, and no rights of citizenship are infringed on. . . .” (Emphasis added.)

A review of the foregoing cases cited by defendants discloses that they do not go to the extent of holding that the courts will never under any circumstances inquire into the reasons for denial of membership in a voluntary association. On the contrary they demonstrate that inquiry will not be precluded where tortious or illegal purpose and conduct are involved. They fail to support the contention that inquiry into the reasons for denial of membership will be precluded where, as here, it is charged that membership was denied for the purpose of restraining trade and competition, as a part of a conspiracy to restrain trade and competition, an unjustified concerted refusal to deal and an unjustified interference with contractual and advantageous relationships.

Plaintiff asserts and the defendants, the real parties in interest, deny that a physician, injured by an unreasonable restraint of the practice of medicine, has a cause of action for restraint of trade under both common law principles and the Cartwright Act. (Bus. & Prof. Code, §§ 16700-16758.) While this question, so far as our research discloses, has never been directly decided by the courts of this state, certain cases from other jurisdictions construing the federal antitrust laws and analogous state statutes may be considered.

There are six relevant federal court opinions decided under the Sherman Act which have been concerned with the issue * of whether certain activities in the medical field constitute “trade.” Three of these six opinions arose in the course of a single case in which the American Medical Association and others were indicted for an alleged conspiracy to restrain trade in the District of Columbia in violation of the Sherman Act. In the first of these opinions, United States v. American Medical Ass’n, 72 App.D.C. 12 [110 F.2d 703], cert. den. (1940) 310 U.S. 644 [60 S.Ct. 1096, 84 L.Ed. 1411], the Court of Appeals for the District of Columbia reversed a trial court judgment sustaining a demurrer to the indictment. The in dictment charged that the defendant medical societies combined and conspired to impose restraint on physicians affiliated with a group health association engaged in the business of arranging for provision of medical care and hospitalization to members on a risk-sharing prepayment basis, by threat of or actual expulsion from the societies, by denying them essential professional contacts with other physicians, and by using coercive power to deprive them of hospital facilities for their patients, all constituting unreasonable “restraint of trade” within the provisions of the Sherman Anti-Trust Act. A demurrer to the indictment had been sustained, the trial court holding that the practice of medicine is not a trade within the meaning of section 3 of the Sherman Act. In reversing this ruling the court said (p. 707) : “The trial court was of opinion that the practice of medicine and the business of Group Health and the hospitals do not constitute ‘trade’ within the intent of the statute. The question is new, at least to the extent that there is no ease in which, in the circumstances existing here, it has been decided, but a careful consideration of the language of the Act, its legislative background and the various statements of the Supreme Court concerning the source from which the congressional purpose may be gathered, leads us to conclude the trial court was in error.

“The phrase ‘restraint of trade’ had its genesis in the common law, and its legal import and significance is declared again and again in the decisions of English courts, both before and after the date of our independence, as well as in American decisions in many of the States. The Supreme Court has said that Congress passed the Sherman Act with this common law background in mind.”

At page 710 the court quotes with approval from Styles v. Lyon, 87 Conn. 23 [86 A. 564, 566], as follows:

“ ‘The defendant insists there is a distinction between a business and a profession; that, while the period of restriction as to a business may be unlimited, the rule should not apply to a profession, since it is a purely personal relation whose benefits cease upon death or the cessation from practice. We do not think the distinction tenable. A profession partakes on its financial side of a commercial business, and its good will is often a valuable asset.’ ”

The court then said: “The indubitable effect of all these cases, English and American, is to enlarge the common acceptation of the word ‘trade’ when embraced in the phrase ‘restraint of trade’ to cover all occupations in which men are engaged for a livelihood. We think it makes no difference that, after the practice of medicine had been recognized as embraced in the doctrine of ‘restraint of trade’, Davis v. Mason, supra [5 T.R. 118, 101 Eng.Rep. 69], a number of judges preferred to speak in broader terms of ‘public policy’ and the like, without using the word ‘trade’. The foundation of the rule in restraint of trade eases is the rule of public policy, and always was from Mitchel v. Reynolds, [1711] 1 P.Wms. 181, 24 Eng.Rep. 347, on down, without distinction based on type of occupation involved.

“Perhaps the most illuminating of the English eases is Pratt v. British Medical Association, [1919] 1 K.B. 244. The case was a tort action to recover damages for molesting plaintiff doctors in the pursuit of their calling. The facts there and here are strikingly similar. The plaintiffs had joined the staff of an organization known as Coventry Provident Dispensary, which had fallen under the ban of the medical society because the members of the latter were opposed to what was called contract practice. The doctors who joined the staff of the organization were expelled from the society for violation of its rules of ethics and other members of the society were forbidden to consult with them on pain of expulsion. A ‘black list’ was published in the British Medical Journal, and the court found that the effect was to boycott the plaintiffs in their practice, greatly to their injury, and likewise that the purpose of the boycott was to increase the area of practice and the financial returns of the members of the society. On this subject the court said (p. 272) : ‘If the Coventry Dispensary had been destroyed as a lay organization, then the local doctors would obviously have taken such steps as would have increased their area of private practice, and their emoluments would have gained a corresponding expansion. This was the fundamental object of the defendants. The non-participation in such aim by the plaintiffs was the head and front of their offending. ’

“And considering the validity of the action of the defendants and their right by means of their own rules or canons to impose a restraint upon non-conforming physicians, the court said (p. 274) .• ‘The public interest must be regarded conjointly with the interest of individuals when restraint of trade is in question. . . . Upon considering the rules in question I have arrived at the conclusion that they are in restraint of trade, and are void on the ground of public policy. They gravely, and in my view unnecessarily, inter fere with the freedom of medical men in the pursuit of their calling, and they are, I think, injurious to the interests of the community at large. It may well be that the opinion I have just expressed will, if upheld, destroy the cogency of the defendants’ scheme of boycott; but it leaves them with the safer and more kindly weapons of legitimate persuasion and reasoned argument.’ . . .

“We think enough has been said to demonstrate that the common law governing restraints of trade has not been confined, as defendants insist, to the field of commercial activity ordinarily defined as ‘trade’, but embraces as well the field of the medical profession. And since, as we think, we are required by the decisions of the Supreme Court to look to the common law as the chart by which to determine the class and scope of offenses denounced in See. 3, it follows that we must hold that a restraint imposed upon the lawful practice of medicine,—and a fortiori—upon the operation of hospitals and of a lawful organization for the financing of medical services to its members, is just as much in restraint of trade as if it were directed against any other occupation or employment or business. And, of course, the fact that defendants are physicians and medical organizations is of no significance, for Sec. 3 prohibits ‘any person’ from imposing the proscribed restraints. Congress did not provide that one class, any more than another, might impose restraints or that one class, any more than another, might be subjected to restraint.”

After reversal and remand to the trial court, the defendants were convicted of having violated the Sherman Act, as charged in the indictment, and on an appeal from that conviction the same question—whether the practice of medicine was within the meaning of “trade or commerce” as used in the Sherman Act—was again raised. (American Medical Ass’n v. United States, 130 F.2d 233.) In affirming the conviction, the court stated (p. 236) : “The trade or commerce which was involved in the present case was of three kinds: (1) The making available and financing of medical and hospital services; (2) medical service itself, i.e., service rendered by medical doctors; (3) hospital service, i.e., service rendered by hospital staffs and the use of hospital facilities. As we indicated in our earlier opinion the common law recognized the practice of medicine as being trade ...”

Certiorari was granted by the Supreme Court of the United States to review the affirmance of the convictions. (American Medical Asso. v. United States, 317 U.S. 519, 528 [63 S.Ct. 326, 87 L.Ed. 434].) The Supreme Court affirmed the convictions on the ground that restraints of trade were proved under the Sherman Act but expressly reserved opinion as to whether the practice of medicine and the rendering of medical services as described in the indictment are “trade” under section 3 of such act.

Two of the remaining relevant federal court opinions in this area also were rendered in the course of deciding a single case. In this suit the United States brought an action against the Oregon State Medical Society and others to enjoin a conspiracy to monopolize and restrain prepaid medical care or business in the State of Oregon.

In United States v. Oregon State Medical Society, 95 F.Supp. 103, the district court held that certain Oregon doctors had not violated the Sherman Act in the formation of the Oregon Physicians Service, a doctor-sponsored prepaid medical care plan. The trial court found that the practice of medicine as conducted by the involved physicians is not trade or commerce within the meaning of the Sherman Act. On direct appeal to the United States Supreme Court, the district court decision was affirmed in United States v. Oregon State Medical Soc., 343 U.S. 326 [72 S.Ct. 690, 96 L.Ed. 978]. The Supreme Court again found it unnecessary to decide whether the scope of the word “trade” in the Sherman Act extends far enough to include the practice of medicine in the traditional sense. The court stated as follows (p. 336): “Since no concerted refusal to deal with private health associations has been proved, we need not decide whether it would violate the anti-trust laws. We might observe in passing, however, that there are ethical considerations where the historic direct relationship between patient and physician is involved which are quite different than the usual considerations prevailing in ordinary commercial matters. This Court has recognized that forms of competition usual in the business world may be demoralizing to the ethical standards of a profession.”

The sixth federal decision is Riggall v. Washington County Medical Society, 249 F.2d 266, cert. den. 1958. The plaintiff physician sued the defendant society to recover treble damages for alleged violations of the Sherman Act because of allegedly wrongful refusal to admit him as a member. It was held that his complaint alleging that the practice of his profession as a physician would have been more profitable to him had the defendant society and its members not deprived him of membership therein, but not alleging that he had been prevented from practicing his profession was insufficient to allege a cause of action under the act.

The Supreme Court of the State of Washington had occasion to consider the general question here presented in Group Health Cooperative v. King County Medical Soc., 39 Wn.2d 586 [237 P.2d 737]. This was an action by plaintiff charging defendants with an alleged combination or arrangement in restraint of competition in the field of independent contract medicine and hospital service. In finding certain acts of defendants violative of provisions of the constitution of the state relating to monopolies and trusts, the court stated (p. 765 [237 P.2d]): “As our constitutional provision bespeaks the common law, so it should be permitted to afford the same protection and serve the same broad public interest which is available at common law. Monopolies affecting price or production in essential service trades and professions can be as harmful to the public interest as monopolies in the sale or production of tangible goods. The constitutional provision was designed to safeguard this public interest from whatever direction it may be assailed. The language used must therefore be liberally construed with that end in view.”

In United States v. National Asso. R. E. B., 339 U.S. 485 [70 S.Ct. 711, 94 L.Ed. 1007], it was held that the adoption by an association of real estate brokers of standard rates for commissions to its members constitutes a conspiracy in restraint of trade within the provisions of section 3 of the Sherman Act although no penalties are imposed by the association for deviations therefrom. At pages 489-490 the court said: “Price-fixing is per se an unreasonable restraint of trade. It is not for the courts to determine whether in particular settings price-fixing serves an honorable or worthy end. An agreement, shown either by adherence to a price schedule or by proof of consensual action fixing the uniform or minimum price, is itself illegal under the Sherman Act, no matter what end it was designed to serve. That is the teaching of an unbroken line of decisions. (Citations.) And the fact that no penalties are imposed for deviations from the price schedules is not material. (Citations.) Subtle influences may be just as effective as the threat or use of formal sanctions to hold people in line.”

In holding that the business of a real estate agent consisting largely of the rendition of personal services, is in- eluded in the word “trade” within the meaning of the act the court at pages 490-492 stated: “The fact that the business involves the sale of personal services rather than commodities does not take it out of the category of ‘trade’ within the meaning of § 3 of the Act. The Act was aimed at combinations organized and directed to control of the market by suppression of competition ‘in the marketing of goods and services. ’ (Citation.)

“Justice Story in The Nymph (CC Me) 1 Sumn. 516, F. Cas. No. 10388, while construing the word ‘trade’ in the Coasting and Fishery Act of [Feb. 18] 1793, 1 Stat. 305, ch. 8, said,

“ ‘The argument for the claimant insists, that “trade” is here used in its most restrictive sense, and as equivalent to traffic in goods, or buying and selling in commerce or exchange. But I am clearly of opinion, that such is not the true sense of the word, as used in the 32d section. In the first place, the word “trade” is often, and indeed generally, used in a broader sense, as equivalent to occupation, employment, or business, whether manual or mercantile. Wherever any occupation, employment, or business is carried on for the purpose of profit, or gain, or a livelihood, not in the liberal arts or in the learned professions, it is constantly called a trade. Thus, we constantly speak of the art, mystery, or trade of a housewright, a shipwright, a tailor, a blacksmith, and a shoemaker, though some of these may be, and sometimes are, carried on without buying or selling goods.’ (Italics added.)

“It is in that broad sense that ‘trade’ is used in the Sherman Act. That has been the consistent holding of the decisions. The fixing of prices and other unreasonable restraints have been consistently condemned in case of services as well as goods. Transportation services (citations), cleaning, dyeing, and renovating wearing apparel (citation), the procurement of medical and hospital services (citation), the furnishing of news or advertising services (citations)-—these indicate the range of business activities that have been held to be covered by the Act. In Atlantic Cleaners & Dyers v. United States, supra (286 U.S. 435, 437, 76 L.ed. 1208, 1209, 52 S.Ct. 607), the Court rejected the view that ‘trade’ as used in § 3 should be interpreted in the narrow sense which would exclude personal services. It held, speaking through Mr. Justice Sutherland, that § 3 used the word in the broad sense in which Justice Story used it in The Nymph (CC Me) 1 Sumn. 516, F. Cas. No. 10388, supra. Chief Justice Groner made an extended analysis and summary of the problem in United States v. American Medical Asso. 72 App.D.C. 12, 110 F.2d 703, 707-711, where the Court of Appeals for the District of Columbia held that the practice of medicine in the District was a ‘trade’ within the meaning of § 3 of the Act. Its conclusion was that the term included ‘all occupations in which men are engaged for a livelihood. ’ We do not intimate an opinion on the correctness of the application of the term to the professions.”

While the United States Supreme Court, in the foregoing ease, again reserved opinion as to application of the term “trade” to the professions, it is observed that the analysis of the problem by Chief Justice Groner in the American Medical Association ease, supra, is specifically and favorably mentioned. In that case at page 709 Justice Groner points out that the italicized portion of Justice Story’s opinion in The Nymph ease, “not in the liberal arts or in the learned professions, ’ ’ does not compel the conclusion that the Supreme Court has held that the professions are not trades.

In the California case of Speegle v. Board of Fire Underwriters, 29 Cal.2d 34 [172 P.2d 867], the Supreme Court considered the question as to whether an alleged combination between a board of fire underwriters and insurance companies, which are members of the board, to stifle competition in the insurance field by dominating the business of insurance agents was an unlawful trust. In finding that it was the court said (p. 44):

“The Cartwright Act merely articulates in greater detail a public policy against restraint of trade that has long been recognized at common law. Thus, under the common law of this state combinations entered into for the purpose of restraining competition and fixing prices are unlawful. (Citations.) The public interest requires free competition so that prices be not dependent upon an understanding among suppliers of any given commodity, but upon the interplay of the economic forces of supply and demand.”

We are not concerned here with an appeal from a judgment after a trial of the ease on its merits. The question before us for determination is whether the respondent court should be directed to enter an order compelling defendants to answer the refused questions.

Whether or not the Cartwright Act may be deemed to apply to the facts presented by the pleadings herein, plaintiff has sufficiently alleged a purpose on the part of the defendants to restrain competition by him, as well as acts done in pursuance of that purpose to state a cause or causes of action under common law principles. Perhaps some of these acts could be proved by plaintiff without the aid of discovery proceedings but probably the motives and purposes of the defendants could never be. Unless plaintiff is permitted to obtain answers to proper questions he will be deprived of the means of obtaining in advance of the trial information concerning the issues and means of producing at the trial the evidence necessary to sustain his action. A review of the 21 questions which the defendants have refused to answer brings us to the conclusion that the matters, facts and information sought to be elicited thereby are not privileged against disclosure under the law of this state and are relevant as determined by the subject matter of the action and by the potential as well as the actual issues in the case.

Let a writ of mandate issue directing respondent to set aside its order and to make the necessary orders to enable completion of the deposition in accord with the views expressed herein.

Ashburn, Acting P. J., concurred.

Assigned by Chairman of Judicial Council.