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District Court of Appeal, Fifth District, California.

Thomas Doyle PEMBER, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent; Charles Johnny YOUNG et al., Real Parties in Interest.

Civ. 707.

Decided: September 28, 1966

Vizzard, Baker, Sullivan & McFarland, and Allan H. McFarland, Bakersfield, for petitioner. No appearance for respondent. King, Eyherabide, Cooney & Owen, Roderick S. Cooney and Robert Anspach, Bakersfield, for real parties in interest.


This proceeding tests the efficacy of the sanctions of one phase of modern discovery proceedings and, incidentally, involves the duty of superior courts to accept and follow the determination of law and consequent orders of the District Court of Appeal of their district in a specific case.

In an action filed in the Superior Court of Kern County by Thomas Doyle Pember against charles Johnny Young and Young's Market (Pember v. Young, Kern County No. 93547) arising out of an automobile collision, counsel for Mr. Pember asked certain deposition questions of Mr. Young relative to his plea of contributory negligence;  the defendant refused to answer on advice of his counsel.   The attorneys for Mr. Pember then initiated a proceeding in the Kern County Superior Court to compel him to answer, but the trial court erroneously held:

“* * * that questions asked that call for a legal theory of the facts should be accomplished by means of written interrogatories, wherein * * * [defendant's] attorney, as a professional could apply the facts to his legal theory.”

The plaintiff thereupon filed a petition in this court for a writ of mandate to require the defendant to answer the questions.   In the opinion filed thereafter in 5 Civil No. 625, Thomas Doyle Pember, Petitioner, v. The Superior court of Kern County, Respondent, Charles Johnny Young, et al, Real Parties in Interest, reported as Pember v. Superior Court in 240 A.C.A. 974, 50 Cal. Rptr. 24, this court held:

“The trial court was wrong.   It is well established that a party to litigation is entitled to use either or both interrogatories and the deposition of an opposing party as proper means of discovery unless it would be ‘unjust, inequitable, oppressive or burdensome.’ ”

This court held that it was an abuse of discretion on the part of the trial judge to refuse to require the defendant to answer the questions, and that “* * * there was no sound ground to justify the denial of the request made by plaintiff.”

The opinion quoted numerous authorities in support of its conclusion.   Counsel for the real party in interest did not apply for a hearing in the Supreme Court and this court's holding became final where it was said:

“IT IS, THEREFORE, ORDERED that a peremptory writ of mandate issue requiring the superior court to set aside the order heretofore made and to enter an order that the defendant, Young, answer the questions;  it is further ordered that at said time the trial court shall hear and determine any motion which may be made by petitioner for an award of costs as against the defendants pursuant to section 2034 of the Code of Civil Procedure.”

Pursuant to the writ of mandate, counsel for Mr. Pember filed in the Kern county Superior Court a motion for an order requiring defendants to make payment of the costs sustained by plaintiff.   The motion was supported by an affidavit of merits of Allan H. McFarland and was submitted without contrary evidence and without argument.

The superior court denied the motion in its entirety, accompanying the order by a memorandum of decision in which it said:

“The determination of this matter requires the court to determine whether or not the refusal [to answer the questions] was ‘without substantial justification’ C.C.P. 2034.   After examining the entire file, including the deposition, the purported answers and objections made, the minute order of Judge Jelletich denying the motion to compel answers, the affidavit of Mr. McFarland, the pleadings in the case, and the written opinion of the District Court of Appeal, Fifth Appellate District, I am unable to find that the refusal was ‘without substantial justification’.   I am, of course, handicapped in this regard as by the stipulation of counsel I have heard no oral presentation of this entire proceeding.

“I, therefore, deny the motion for an order for the payment of attorney's fees and costs.”

Thereafter, counsel for Mr. Pember filed the present petition for writ of mandate and a hearing was held in due course.

 The structure of the court system of this state, or anywhere else for that matter, requires that the decision of a higher court, having jurisdiction of a specific matter, prevail over the possible contrary views of a judge in a subordinate court.   This logically necessary principle has been effective from time immemorial, and it is, or should be, obvious to every participant in our legal system.   The opinion in Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 324, 369 P.2d 937, 940, states:

“Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction.   It is not their function to attempt to overrule decisions of a higher court.”

 The application of this principle is particularly apropos in a case such as this in which the appellate court has explicitly determined the point of law involved and has given an order to the trial court based upon it.   The opinion in Pember v. Superior Court, supra, 240 A.C.A. 974, 50 Cal.Rptr. 24, left no option to the trial court to decide the question contrary to the holding of this court.   It is necessary that it set aside the order of July 25, 1966, denying recovery of costs and that the trial court make a new order awarding costs to Thomas Doyle Pember, the petitioner, against the defendants in Pember v. Young for the whole period that he has been engaged in the attempt to enforce his right of discovery, including the present proceeding.   Some of the items are specific and perfectly clear as to amount, for example, the cost of filing each of the two petitions for mandamus which have been required and the cost of necessary transportation of counsel between Bakersfiled, where the attorneys for the petitioning party have their offices, and Fresno, where the District Court of Appeal held its hearings.   There are other items of cost which involve required services by the attorneys for Mr. Pember in the superior court and in the appellate court;  we have no disposition, at least in advance, to interfere with the discretion of the trial court in determining the reasonable amount of these latter items.   Petitioner should be allowed to file a supplemental affidavit covering the costs, including attorneys' fees, in this proceeding and the trial court may require the introduction of additional evidence on any phase of the subject.

It is ordered that a peremptory writ of mandate issue directing the Kern County Superior Court to award costs to Thomas Doyle Pember against the defendants in Pember v. Young in conformity with the views expressed in this opinion.

CONLEY, Presiding Justice.

STONE, J., and McMURRAY, J. pro tem.,* concur.

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