I dissent. The majority opinion strongly argues, and apparently holds, that the practice of medicine in California constitutes “trade or commerce” within the meaning of the Cartwright Act. The uncertainty as to what the majority opinion actually holds in this regard stems from the following described aspects thereof:
(1) The opinion discusses and quotes from several federal court decisions which arrive at divergent and conflicting conclusions as to whether or not the practice of medicine is “trade or commerce” within the meaning of the federal anti-monopoly statutes. By its treatment of these and other decisions discussed, the opinion seems to indicate a definite preference for the affirmative view.
(2) However, in the next to the last paragraph in the prevailing opinion it is stated: “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.”
*766Does this quoted sentence mean that there exists in California law another basis, apart from the Cartwright Act, upon which to premise liability for the acts of defendants allegedly done pursuant to a purpose “to restrain competition” by plaintiff? Does this reference to unspecified “common law principles” mean that the common law of California reaches further than the Cartwright Act in denouncing combinations entered into for the purpose of restraining competition ? Does the majority opinion mean that under the common law of California any association of practitioners is guilty of an unlawful combination if its policies or practices tend in any substantial way to restrict or limit competition or to fix fees to be charged in the practice of any of the learned professions? Or does the opinion here have reference only to some of those more recently developed concepts having to do with the protection of the so-called “interest in freedom from concerted interference with advantageous business relationships?”
It is my understanding that the Cartwright Act was intended to constitute a complete embodiment of the common law of California on the subject of unlawful combinations in restraint of trade and competition. In Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 44 [172 P.2d 867], the court observed that “[t]he Cartwright Act merely articulates in greater detail a public policy against restraint of trade that has long been recognized at common law.” Any rules of the common law at variance or inconsistent with the intent and policy of California statutes are deemed to be superseded and are not the law of this state. (Monterey Club v. Superior Court, 48 Cal.App.2d 131, 145 [119 P.2d 349].) In the last cited case, the appellate court rejected common law definitions of a public nuisance, and citing People v. Lim, 18 Cal.2d 872 [118 P.2d 472], concluded that any action in California to abate a nuisance “must be predicated upon the statutes of this state rather than upon the common-law definition of ‘public nuisance.’ ” (Monterey Club v. Superior Court, supra, at p. 144.)
In further support of its holding that the definitions of a public nuisance contained in our Civil Code operated to supersede common law definitions, the court referred to section 4 of the Civil Code which provides: ‘ ‘ The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this state respecting the subjects to which it relates, *767and its provisions are to be liberally construed with a view to effect its objects and to promote justice.”
Accordingly, I would regard as erroneous a holding that the common law of California reaches further than the provisions of the Cartwright Act with respect to combinations in restraint of trade.
The Sherman Act also is described as an embodiment or restatement of the common law. (Apex Hosiery Co. v. Leader, 310 U.S. 469, 498 [60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044]; see also Rolley, Inc. v. Merle Norman Cosmetics, 129 Cal.App.2d 844, 849 [278 P.2d 63, 282 P.2d 991].) The Supreme Court of the United States has twice expressly declined to hold that the practice of medicine constitutes “trade or commerce” within the meaning of that statute. (American Medical Association v. United States, 317 U.S. 519, 528 [63 S.Ct. 326, 87 L.Ed. 434]; United States v. Oregon State Medical Society, 343 U.S. 326, 336 [72 S.Ct. 690, 96 L.Ed. 978].)
Since no California decisions have been reported which discuss the application of the Cartwright Act to the practice of the so-called learned professions, I agree that it is entirely appropriate to consider the decisions of the federal courts dealing with the application of the federal antitrust laws. However, I would not concede that such federal decisions would necessarily be controlling in determining the proper construction of the California statute.
In United States v. National Asso. Real Estate Boards, 339 U.S. 485, 490 [70 S.Ct. 711, 94 L.Ed. 1007], in an opinion by Mr. Justice Douglas, the coverage of the word “trade” as it appears in the Sherman Act is defined as follows:
“Justice Story in The Nymph [(CC Me) 1 Sumn. 516, F. Cas. No. 10388] 18 Fed.Cas. 506, 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 oceunation, 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 *768the learned professions, it is constantly .called a trade. Thus, we constantly speak of the art, mystery, or trade of a house-wright, 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.’ ” (Emphasis added.)
As the majority opinion indicates, three of the six relevant federal court decisions therein discussed dealt with an alleged conspiracy to hinder and obstruct the business operations of an organization called “The Group Health Association, Inc.” There was no charge of monopoly, restraint of competition or price fixing in the practice of medicine as such. Group Health was a commercial enterprise engaged in the business of providing medical care and hospitalization on a prepayment basis. In a very real sense, the association was in the insurance business. To hold that interference with the activities of such a commercial enterprise amounts to a restraint upon trade or commerce quite obviously is a far cry from holding that the traditional practice of medicine is “trade” within the meaning of the statute.
The majority opinion places great reliance upon the decisions of the Court of Appeals for the District of Columbia in United States v. American Medical Association, 72 App.D.C. 12 [110 F.2d 703], and American Medical Association v. United States, 130 F.2d 233. It must be remembered, however, that the language of those decisions so extensively quoted in the majority opinion was expressly and pointedly denied the benefit of sanction by the United States Supreme Court in American Medical Association v. United States, supra, 317 U.S. 519, 528, and United States v. Oregon State Medical Society, supra, 343 U.S. 326, 336.
It is further to be noted that Chief Judge Groner in his decision in the American Medical Association eases relied heavily upon the English ease of Pratt v. British Medical Association [1919] 1 K.B. 244. The opinion in that case was written by Me Cardie, J., presiding in a court of first instance. It appears that the gravamen of the defendants’ conduct in that ease was their alleged conspiracy to destroy the Coventry Dispensary, an institution which provided its members with medical attendance, medicines, etc., in return for their annual dues. The doctors on the staff of the dispensary were compensated by allowing them a specified share of the funds derived from the dues of members. This was described as “contract practice.” Hence, it is apparent that the Coventry Dispensary was essentially the same in character and purpose *769as the Group Health Association involved in the American Medical Association cases.
In this connection it seems fair to observe that the policy of the English law as declared by McCardie, J., in 1918, is no reliable guide in searching for the intent of the California Legislature when it enacted the Cartwright Act in 1907. The policy of twentieth century English law has embraced many socialistic concepts which have not yet gained general acceptance in this country.
A more authoritative and more recent English decision is that of the Judicial Committee of the Privy Council in Thompson v. British Medical Association [1924] A.C. 764. This decision sustained the Supreme Court of New South Wales in reversing a judgment against the New South Wales branch of the British Medical Association and certain of its officers for the sum of £2000. This sum had been awarded the plaintiff doctor upon a jury verdict by way of damages which he claimed to have suffered as a consequence of his expulsion from the association and an ensuing boycott by its members. The general nature of his complaint is indicated by the following quotation from the opinion rendered by Lord Atkinson:
“In the first count of the declaration the plaintiff alleges that the defendant association maliciously and unjustifiably conspired and combined with certain of its members whose names were unknown to him to do certain things. These things were (1.) to pass a resolution for his expulsion, (2.) to expel him, (3.) to induce, persuade and procure medical practitioners members of the associations to refuse to meet him in consultation or to accord him professional recognition in any other form, (4.) to intimidate, coerce and unduly influence such practitioners into refusing to meet him in consultation or to accord him professional recognition in any other form, and (5.) to seriously prejudice the plaintiff and injure his practice. The count goes on to allege that each of these objects was carried out in pursuance of this conspiracy and combination, as a consequence of which the plaintiff suffered damage.”
The remaining four counts of the complaint charged other wrongful acts including coercion, intimidation, defamation, etc. In support of his action, the plaintiff relied strongly upon his contention that the following regulations of the society were illegal:
“ (1) Where any member shall have been expelled he shall *770not be met in consultation or accorded professional recognition in any other form by any member until it shall have been otherwise decided by the council. (2) Where any medical practitioner shall have been declared by the Council (a) Tu have been guilty of conduct detrimental to the honour and interests of the profession and calculated to bring the profession into disrepute, or (b) to have grossly contravened the custom of the medical profession, or (c) to have acted detrimentally to the interests of the association or omitted to comply with any of its rules or resolutions; no member shall consult with or extend professional recognition in any form to such practitioner until it shall have been otherwise decided by the council.”
In rejecting this contention, their Lordships declared:
‘‘During the argument it was persistently urged that this regulation operated in general restraint of trade and was therefore void. That involves a misuse of language. Even if it did so operate it would not be void at common law but merely unenforceable at law, while under ss. 3 and 4 of the Trades Union Act, 1871, it would be valid at law, but not directly enforceable: Joseph Evans & Co. v. Heathcote.1 But the more important consideration is this, that this regulation was framed long before the appellant became a member. It was not specially directed at him. The respondents have not attempted to enforce it in any way whatever. It is not designed to coerce. It can only coerce—if coerce at all—members of the association. People who never were members, or, like Dr. Thompson, were members, but have ceased to be so, may snap their fingers at the association, and as far as that body is concerned meet in consultation with any one they please. The object of the rule is, in their Lordships’ view, not to penalize or impoverish or injure Dr. Thompson, or any former member, but solely to keep up the discipline of and ‘moral’ of the members of the association to protect and promote its interests, though indirectly and as an entirely undesigned result some injury may incidentally be sustained by an expelled member in the practice of his profession. The difference between two such intentions is well established in trade competition. A trader may deliberately with the object of securing and developing his trade, by advertisement, lowering of prices or suchlike means, do something which may result in injuring the trade of a rival trader, but if that be not the designed *771and intended results of the first trader’s action, but only an undesigned incidental consequence of it, the first trader is blameless. The well-known case of Mogul Steamship Co.2 establishes this distinctly.”
Returning now from this digression into British law, reference will be made to more recent decisions of the federal courts of the United States which tend to contradict those relied upon in the majority opinion.
In United States v. Oregon State Medical Society, 95 F. Supp. 103, 118, the United States District Court held that an association of Oregon doctors had not violated the Sherman Act in the formation and operation of Oregon Physicians Service, a doctor-sponsored plan for prepaid medical care. It is a significant fact that in this case the court was dealing with activities beyond the scope of the traditional practice of medicine. Nevertheless, the court held that these activities did not constitute “trade” within the coverage of the Sherman Act. The court expressly posed the question: “Are the professions exempt from the Sherman Act?” The court declared its conclusion in this language: 11 The practice of medicine as conducted within the state of Oregon by doctors of Oregon, including defendants, is not trade or commerce within the meaning of section 1 of the Sherman Anti-trust Law, ...”
This decision was affirmed on direct appeal to the United States Supreme Court in United States v. Oregon State Medical Society, supra, 343 U.S. 326, 336. In this decision the Supreme Court again found it unnecessary to decide whether the word “trade” in the Sherman Act comprehends the practice of medicine. The language of the court in that regard is as follows:
“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 consideration 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. Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 79 L.Ed. 1086, 55 S.Ct. 570.” (Emphasis added.)
*772The pointed distinction between professional and commercial relationships which is made in the foregoing language seems highly significant, and might reasonably be regarded as an indication of the court’s leaning with respect to the question reserved.
The most recent federal decision, and one involving a complaint in substance very similar to the complaint of the petitioner in the ease at bar, was rendered by the United States Court of Appeals for the Eighth Circuit in Riggall v. Washington County Medical Society, 249 F.2d 266 (cert. denied March 3, 1958; 355 U.S. 954 [78 S.Ct. 540, 2 L.Ed.2d 530]). In that ease, the plaintiff doctor sought to recover damages from the County Medical Society of Washington County, Arkansas. He alleged that he was in all respects qualified for membership in the Society, but that notwithstanding such qualifications, his applications for membership in due form were rejected on four different occasions; that his applications had been wrongfully, capriciously and arbitrarily rejected; that because of these denials of membership, he had been and was prevented from doing a number of enumerated things, all of which had been of great economic benefit and importance to him as well as to his patients and the public and society in general, and that the defendants had combined and conspired to commit various acts amounting to violations of the Sherman Anti-Trust Act. He prayed for compensatory damages in the sum of $100,000; for treble damages; for an injunction and for other specific relief.
The federal district court dismissed the complaint, holding that it failed to state a cause of action. In affirming the judgment of dismissal, the Court of Appeals cited and quoted with approval the opinion of the District Court of Oregon in United, States v. Oregon State Medical Society, supra, 95 F. Supp. 103. The following is the concluding paragraph of the opinion:
“As has been observed, plaintiff’s complaint in substance is that the practice of his profession would have been more profitable to him had the defendants not deprived him of membership in the Washington County Medical Society. Plaintiff was not prevented from practicing his profession and the complaint, we think, is wholly lacking in allegations essential to a cause of action under the Sherman Anti-Trust Act.” (Riggall v. Washington County Medical Society, 249 F.2d 266, 270.)
In summary, it seems fair to say that the greater weight *773of federal authority favors the conclusion that the traditional practice of medicine in particular, and the practice of the learned professions generally, do not constitute “trade or commerce” within the meaning of the Sherman Act. The above quoted language of Justice Jackson in United States v. Oregon State Medical Society, supra, 343 U.S. 326, seems at the very least to suggest a leaning in favor of this conclusion.
But even had the federal courts come to the opposite conclusion, there would still have remained other reasonable and sufficient grounds to support the view that the Cartwright Act was intended to exclude the learned professions from the coverage of its provisions.
In the first place, the words and phrases of California statutes generally “are construed according to the context and the approved usage of the language.” (Civ. Code, § 13; Code Civ. Proc. §16; Pol. Code, §16.) In modern usage of the English language in the United States the word “trade” does not generally connote the practice of the learned professions. In the second place, our Business and Professions Code evidences a conscious legislative recognition of the distinctions which we make here. When the Legislature has intended to include the professions within the scope of regulatory statutes, it has made that intention clear by the use of appropriate language.
Section 16600 of the Business and Professions Code,3 which codifies the law relating to restrictive covenants, is made expressly applicable to a “profession” as well as to a “trade” or “business.” Section 1673 of the Civil Code, the statutory antecedent of section 16600, was enacted in 1872. The Cartwright Act, which codifies the law relative to “combinations in Restraint of Trade,” was not enacted until 1907. It seems to be a matter of some significance, therefore, that it does not use the word “profession” in defining the scope of its coverage.
This difference in legislative treatment of restrictive covenants and restraint of trade was undoubtedly intentional. It indicates an awareness of the fact that the common law rules relating to ancillary covenants not to compete were based upon different considerations of public policy from those which motivated the more recent development of rules de*774nouncing monopolies, restraint of trade, price fixing and the like. The ancient law of covenants was based largely on the view that an agreement not to compete imposed a form of servitude on the individual promisor. Such covenants unless reasonably restricted in duration and territorial scope were held to be void. The modern anti-trust laws are premised upon very different considerations and very different purposes. (See Apex Hosiery Co. v. Leader, 310 U.S. 469 [60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044].)
The exemption of members of the learned professions and their associations from the regulatory prohibitions of state and federal statutes denouncing restrictions upon competition, price fixing, and the like, does not place them in any unique or “most-favored” position. It is common knowledge that labor organizations have been expressly exempted from the application of these laws. On the basis of these exemptions, numerous other immunities have accrued to labor organizations, and these immunities are rationalized by implications drawn from the declared and assumed reasons underlying the exemption. It seems to me that substantially the same immunities in favor of the professions may be implied by a similar process of reasoning.
As to the effectiveness of the exemption as a basis for other immunities logically to be implied therefrom, it seems to me to make no difference that in the one case, (that of labor organizations) the exemption was effected by an express exclusionary clause limiting the general coverage, whereas in the other case (that of the professions) it was effected by the use of language of coverage designed to exclude them. The situation is somewhat analogous to the mechanics involved in drafting a contract of insurance. If the purpose is to exclude certain risks, it may be accomplished in either of two ways. The language affirmatively defining coverage may be so chosen that it will not include the risks not intended to be covered. Or, if the language used to define coverage might include them, they may be excluded by express words of limitation or exclusion. Assuming the use of appropriate language, the result should be precisely the same, whichever method is used.
In addition to the considerations underlying the policy of exempting the professions from laws denunciatory of price fixing and of restrictions upon competition suggested by the decisions above discussed, there are, I think, other substantial reasons which logically entitle the professions to *775some of the same immunities which have been accorded to labor organizations. I have particularly in mind the immunities from liability for concerted refusal to deal and from liability for concerted interference with contracts and other advantageous economic relationships. (See Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 35 [112 P.2d 631]; Los Angeles Pie Bakers Association v. Bakery Drivers, 122 Cal.App.2d 237, 243 [264 P.2d 615], and eases cited.) I shall attempt hereinafter to set forth some of these additional reasons.
One of the emphasized allegations of petitioner’s complaint in the ease at bar is that the defendants are engaged in a conspiracy to fix prices. Indeed, petitioner in paragraph XLII of his complaint assigns as the true reasons for the rejection of his application for membership in the defendant association the following:
“XLII.
“That plaintiff has at all times charged members of the public for medical treatment in his offices rates lower than those prescribed as minimum rates, by the Los Angeles County Medical Association for its members; that plaintiff’s charges have not conformed to the mathematical formula-type charges endorsed by the California Medical Association, the non-observanee of which, as hereinabove set forth, The California Medical Association has stated would constitute the basis of disciplinary action by the Los Angeles County Medical Association: that plaintiff further made his services available to the public during a greater number of hours per day and a greater number of days per week than did the members of the said association practicing in his community; that as a condition for admission into the said association, plaintiff would have been required to conform to the standards for fees and hours prescribed by the associations; that acceptance of these conditions would have been the domination of the medical practice and the profession and business of the plaintiff by the defendants.”
Yet the promulgation, publication, use and enforcement of minimum fee schedules for professional services has been common in many parts of the country for nearly a century. (See Marcus, Civil Rights and the Antitrust Laws, 18 U.Chi. L.Rev. 171, 201-202, citing public announcements of minimum fee schedules for medical services in Alabama, Illinois, Michigan, Nebraska, New Hampshire, New Jersey, Pennsylvania, South Carolina, and the District of Columbia; see *776also Rohlf v. Kasemeier, 140 Iowa 182 [118 N.W. 276].) The minimum fee schedules of local bar associations are constantly being revised and republished in the legal journals of California.
With respect to charges of price fixing and the taking of measures designed to restrict competition, it should be borne in mind that the professions are given certain monopolistic privileges in return for their submission and adherence to legally prescribed standards and regulations. As a corollary to these privileges, the professions are expected to police themselves and to maintain the highest standards of ethics. Not the least important among these ethical requirements are those which relate to the reasonableness of fees and of the duty to render their services to the indigent.
In every state of the union associations of lawyers and doctors are engaged in concerted efforts to discourage or prohibit advertising and unauthorized practice and otherwise to limit and discourage commercialism and competition. I would not be inclined to question the right of a local bar association to reject the membership application of a lawyer known as one who sought to increase his clientele by consistently cutting his fees below those set by its minimum schedule (or below the standards of the statutory fees set by the Probate Code).
My conclusion is that petitioner has stated no cause of action under the Cartwright Act, or under any other law or theory suggested by him. In so concluding, I accept the premise stated in the majority opinion that “ [t]he 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.” My conclusion in this regard is substantially supported by the decision in Riggall v. Washington County Medical Society, supra, 249 F.2d 266, cert. denied, 355 U.S. 954 [78 S.Ct. 540, 2 L.Ed.2d 530].
But even if I were compelled to concede that a cause of action had been stated, or might be stated on the general state of facts as represented, I would still vote to deny the writ for two reasons: (1) to grant the writ is to deny the trial court the essential power reasonably to control discovery procedures through the exercise of a sound discretion; and (2) any questions or papers relating to the reasons which motivated the rejection of petitioner’s membership application are not rele*777vant or material to any substantial triable issue. I shall discuss these two points in order.
The majority opinion alludes to the greater “liberality” of the new rules which are designed to facilitate pretrial discovery. It is devoutly to be hoped that these new rules will prove fully as salutary as their most ardent advocates expect them to be. There may be some basis, however, for the apprehension of those who fear that the new rules are susceptible of being abused and misused for purposes of annoyance and harassment. To my mind, the key to this situation is the exercise of a proper control by the trial court.4 If this control is to be effectively exercised, a substantial area of discretion must be vouchsafed to the trial judges. Indeed, the language of section 2019, subdivision (b) of the Code of Civil Procedure seems clearly intended to vest the court with a broad discretion in limiting and regulating the use of discovery procedures.
Every lawyer who is familiar with discovery practice under the Federal Rules of Civil Procedure will testify to the importance of adequate and reasonable control by the trial court. Although the federal rules are generally regarded as salutary in effect, it is well known that they have been grossly abused with resultant injustices of a most serious character in eases where adequate control has not been exercised.
It is an established rule that the extraordinary -writ of mandamus is not available as a matter of law, but the issuance thereof rests solely within the discretion of the court to which application is made. The right to the writ must be clear and certain since its purpose is to prevent a failure of justice. (Irvine v. Gibson, 19 Cal.2d 14, 15-16 [118 P.2d 812].) The writ of mandate is not designed and should not be utilized to unduly control and circumscribe the rulings of trial courts. In matters involving discretion, the writ will not lie to control the exercise of such discretion “except in those rare instances where under the facts it cannot be exercised in but one way. ’ ’ (Monroe v. Superior Court, 97 Cal.App.2d 470, 472 [218 P.2d 136].)
On the question whether the writ of mandamus should issue to compel the lower court to uphold the right of a party to an action to take depositions, to have questions answered, and *778documents produced, the California cases divide into two groups. In one category are those in which the trial court has refused to compel a witness or a party to complete his deposition, to answer questions that clearly appear to be proper, or to produce documents clearly appearing to be relevant and material. In the other category are those in which the trial court properly has exercised a reasonable control. (McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 393 [159 P.2d 944].) Where the trial court has acted in such a manner as to deny the right of a party to take depositions and to use subpoenas, its action may be directed by mandamus. (I.E.S. Corp. v. Superior Court, 44 Cal.2d 559 [283 P.2d 700] ; Zellerbach v. Superior Court, 3 Cal.App.2d 49 [39 P.2d 252].) However, while ordinarily a party is entitled to the taking of a deposition, or to the use of a subpoena as a matter of right, at any time after service of summons or appearance of the defendants, the exercise of that right .is subject to a reasonable control by the trial court, and under appropriate circumstances may be denied. (Hays v. Superior Court, 16 Cal.2d 260, 264 [105 P.2d 975]; Patrick Farms, Inc. v. Superior Court, 13 Cal.App.2d 424, 425-426 [56 P.2d 1283].)
The absolute right of the medical association to reject petitioner’s application for membership for any reason, good or bad, being expressly conceded, I fail to see the relevancy or materiality of the hoped-for evidence to any substantial issue, either existing or potential. But assuming the existence of the issue and the relevancy and materiality of the evidence, its pretrial discovery would seem to be relatively unimportant to the development of petitioner’s ease. This evidence would have no bearing whatsoever upon any of the numerous other more basic and essential issues of fact tendered by the allegations of petitioner’s complaint. If the petitioner proves to be able to make out a substantial case, and if, in the context of the evidence developed at the trial, it appears to the trial judge that the questions now before us are properly directed to a material issue essential to the just determination of the cause, it will not be too late to require the "witness to answer and to compel disclosure of the contents of the membership file.
It may be conceded that the files of the medical association relating to applications for membership are not “privileged” in the strict sense of that term. But that concession does not detract from the validity of the rule of policy which the *779association seeks to invoke on the authority of Runyon v. Board of Prison Terms and Paroles, 26 Cal.App.2d 183 [79 P.2d 101], namely, that the confidential nature of the contents of such files should be recognized and respected. The law should not compel the disclosure thereof in violation of clearly implied confidences except for cogent and satisfactory reasons. The trial judge will be in the best position to determine the necessity and propriety of requiring a disclosure and to evaluate the conflicting interests involved. I cannot see that the petitioner would be materially prejudiced by deferring the determination to that stage of the proceeding.
In short, I think the trial court has properly exercised its discretion in this matter. I would deny the writ of mandate.
The petitions of respondent and real parties in interest for a hearing by the Supreme Court were denied July 16, 1958. Schauer, J., Spence, J., and McComb, J., were of the opinion that the petition should be granted.
[1918] 1 K.B. 418.
[1892] A.O. 25.
§ 16600. “Invalidity of contracts. Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”
"In view of the wide discretion vested in trial judges to protect against abuse, as well as to enforce discovery, the significance of an able trial bench to sound and just judicial administration is further emphasized.” (Louisell, Discovery Today, 45 Cal.L.Rev. 486, 514.)