As stated in the majority opinion, one of the grounds urged by the husband herein in support of the trial court’s order prohibiting the depositions was that the depositions were proposed by petitioner for the sole purpose of harassment. The majority concede {ante, p. 440) that “This is, of course, a statutory basis for the exercise of discretion by the trial court, and such exercise cannot be disturbed if there is any substantial evidence to support it.” (See also Code Civ. Proc., § 2019, subd. (b) (1).) As I read the record, it appears that, contrary to conclusional statements in the majority opinion, the declarations filed by the husband set forth substantial facts which support this statutory basis and the trial court’s implied finding that petitioner seeks the depositions for the sole purpose of “annoyance, embarrassment, or oppression,” as contended by the husband.
Appended as Exhibit “G” to the petition for the writ is a *442copy of the husband’s declaration filed in support of his motion for an order pursuant to subdivision (b) (1) of section 2019 of the Code of Civil Procedure that the depositions not be taken. Incorporated in such declaration “as though set forth in full at length” are, among other things, the husband’s previous declaration and the declaration of his former attorney, Mrs. Deutsch. Although petitioner did not include or attach those declarations which as a part of Exhibit “G” were before the trial court, thus failing to provide this court with a complete record (which alone would justify our denial of the extraordinary remedy of mandamus), the husband as the real party in interest has included certain of them in his return to the alternative writ.
In the husband’s declaration (Exhibit “A” to the return) facts are set forth, complete with dates, which, as the trial court impliedly found, show a determination on the part of petitioner wife to extort further property from him; that, for example, she stated to the husband that she would “keep me in court so that I would be burdened with additional legal expenses for her lawyers, as well as my own, unless I would agree to give her my one-fourth interest in the apartment building. She further stated that she could even more effectively ruin my practice in the future than she had heretofore and that she would continue to take me into court upon the slightest provocation in order to put me hopelessly in debt. She threatened that unless I would in some way modify the Decree of Divorce she would seek every doctor and every doctor’s wife who knew me socially or professionally, and that she would do her best to influence them to make no further referrals of patients to me. When I asked her how would that help her and the children, her reply was that if she couldn’t benefit from it, she would at least see to it that I could not benefit.”
The declaration, which comprises six double-spaced legal length pages of typing, further sets out factual details, complete with dates, showing that the wife was aggressively endeavoring to alienate the children from their father and using them as intermediaries in an attempt to persuade him to give their mother what she wanted, that when the husband mentioned to her that “the coming week-end was my right to have the girls, she . . . said that the Decree was just a bunch of words put in by my lawyers, and that she had no intention of abiding by them. ’ ’
The above related facts, as well as others set forth in the husband’s declaration, constitute, in my view, considerably *443more than, in the words of the majority opinion, a (ante, p. 435) “bare allegation that the purpose of the attempted depositions was harassment, embarrassment and oppression,” amounting to (ante, p. 440) “mere statements of his opinion or conclusion . . . [without] probative value.” I believe they abundantly support the essential implied findings and the order of the trial court prohibiting the taking of the depositions, and that, accordingly, if we follow established law, the writ sought by petitioner wife should be denied.
McComb, J., concurred.
The petition of the real party in interest for a rehearing was denied August 30, 1961. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.