BAUGUESS v. Maxim N. Bach, Appellant.

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Court of Appeal, Third District, California.

Ira James BAUGUESS, Plaintiff, v. Webster PAINE et al., Defendants and Respondents, Maxim N. Bach, Appellant.

Civ. 16290.

Decided: November 14, 1977

Larimer and Evans and Timothy J. Evans, Marysville, for plaintiff and appellant. Price, Burness, Price & Davis and Robert L. Davis, Chico, for defendants and respondents.

The following question is posed on appeal. Does the trial court have inherent power, codified in the Code of Civil Procedure, to impose sanctions against an attorney who has caused a mistrial through his serious misconduct? The attorney, using devious means, had read the private notes of the jury, and had done so in contravention of the clearly expressed intent of the trial judge. The sanctions were ordered paid to the other party, innocent of wrongdoing, as partial compensation for losses caused by the mistrial. We conclude that the court may impose such sanctions.

In addition to the issue of sanctions, appellant raises two claimed errors of reversible proportions. First, the mistrial order which formed the basis for sanctions was improperly granted. Thus, the court abused its discretion. Second, the judge's bias and prejudice prevented a fair hearing. We disagree. The trial court did not err.

A jury trial in the case of Bauguess v. Paine commenced on August 16, 1976. Appellant appeared as attorney for the plaintiff. The jury was selected and the appellant began the presentation of the case for the plaintiff.

During the second day of trial plaintiff sought to introduce into evidence a diagram attached to a deposition which was to be read to the jury. Appellant sought to have copies of that exhibit distributed to each juror for the jurors' personal use while listening to the reading of the deposition. The original diagram was received into evidence and the extra copies for the jury's use were received as exhibits. The court allowed copies to be distributed to the jury. It orally instructed the jurors, while appellant was present, that they could make notes directly on the copies for their own purposes. The copies would be collected and redistributed to the jurors at the time of deliberations. The deposition was then read. The court followed the announced procedure.

Plaintiff then called a California Highway Patrol officer to testify. The officer had prepared a sketch of the accident; again appellant sought to have copies of the sketch distributed to the jury for their use. The sketch, marked exhibit 7, and the copies, marked exhibits 7A through 7M, were received into evidence without objection. The copies were distributed to the jury. Again, while counsel was present the trial judge informed the jury that they could take notes on the exhibits, and that the notes would be returned to them at the time of their deliberations. The trial continued.

On August 18, 1976, court reconvened outside the presence of the jury. The judge then advised the parties that the night before, as he was calling the criminal calendar, appellant had approached the clerk and asked to look at some of the exhibits. Appellant selected the exhibits that had been distributed to the jury for their use.

Appellant admitted looking at the exhibits 7A through 7M, and maintained that he had a right to do so since they were exhibits in the case. In fact, he argued that he had a duty to his client to read the jurors' notes. Appellant continued to maintain this position. The court noted that such conduct and the maintenance of such a contention might involve possible contempt charges. The judge declined appellant's invitation to read the jury notes, as did defense counsel. Defense counsel moved for a mistrial. After discussion the court granted the motion.

Defense counsel moved for sanctions against plaintiff's counsel. Attorney fees to his client were $350.00 per day. He asked that the requested sanctions of $700.00 be paid to defendant for the prior two days of trial. The loss, after all, had been caused by appellant's misconduct.

The matter was set for an August 20, 1976 hearing. Appellant appeared with counsel. Counsel argued that due to the possibility of contempt proceedings the hearing on sanctions should be postponed. Appellant submitted the matter without comment. Thereafter, the court imposed the sanctions, ordering appellant to pay $700.00 to the defendant for attorney fees.

Seven days later a hearing was held for consideration of possible contempt charges. The possibility of referral to the Bar Association also was to be discussed. Appellant made a verbal motion under Code of Civil Procedure section 170, subdivision (5) to disqualify the judge. The judge declined to disqualify himself noting that the motion was not timely, and stating that he was not prejudiced against appellant. The court found appellant in contempt for the jury notes incident. However, the court imposed no penalty. The court stated that it preferred to let appellant pay for the damage he had caused pursuant to the sanctions order.

Appellant filed a written motion under Code of Civil Procedure section 170, subdivision (5) on August 27, 1976. The court answered on September 3, 1976. On the same day an order was entered adjudging appellant guilty of contempt. The contempt order noted that sanctions were already ordered under the general powers of the court to control the proceedings before it. The order stated that if appellant paid the sanctions no further proceedings would be necessary. The order further recited appellant's full right to appeal the order of sanctions. Finally the order explained that if appellant failed to pay the sanctions, the question of penalties for direct contempt, and whether any indirect contempt occurred, would be referred to another judge for decision.

The notice of appeal and all briefs raise issues only as to the propriety of the sanctions order.

The order imposing sanctions is a final order, on a collateral matter, directing the payment of money. As such it is an appealable order. (See Wisniewski v. Clary (1975) 46 Cal.App.3d 499, 502, 120 Cal.Rptr. 176.) We consider only the award of sanctions. We indicate no opinion as to the contempt order or proceedings.

I

In reviewing the order awarding sanctions it is necessary for us to consider first the propriety of the mistrial order.

Appellant secured and read the notes kept by the jury during the trial. He did so without notice to opposing counsel and in direct violation of court instructions on the matter. He contends that it was his right and duty as an attorney trying the case to read the notes.

During a jury trial no party is permitted to communicate with or receive communications from the jury on the subject of the trial. (See Code Civ.Proc., §§ 611, 613.)1 Rules of Professional Conduct of the State Bar of California, rule 7-106, subdivision (B)(1) provides: “During the trial of a case: [a] member of the State Bar connected therewith shall not communicate directly or indirectly with any member of the jury.” Attempts to influence or communicate with the jury during a trial are strictly forbidden and when observed have been promptly punished. (In re Jarvis (1922) 57 Cal.App. 533, 538, 207 P. 494; Ex parte Creely (1908) 8 Cal.App. 713, 97 P. 766.) Such measures are necessary to safeguard the impartiality that is essential to the judicial process. (See ABA Code of Prof. Responsibility, EC 7-29.)

While appellant's conduct in reading the private notes of the jurors did not involve a two-way conversation with the jury members such action could only have been intended to result in appellant's acquisition of knowledge of the jurors' private thoughts concerning the evidence presented. This knowledge would enable appellant to bolster his case by tailoring the further presentation of his case to answer questions revealed in the notes. The strict prohibitions against communicating with the jury and the requirement of jury privacy make manifest the impropriety of appellant's conduct.

In assessing the propriety of appellant's conduct in this case we do not rely solely upon that which an attorney should understand. Rather, we rely also on appellant's breach of the court's reasonable procedures. When the trial judge decided that he would allow the copies of the exhibits to be distributed to the jury he stated “they will be instructed they can make notes on it or mark on it themselves for their own purposes, thereafter they'll be collected and again at the time of the deliberations they will be distributed to the jurors.” The procedure was followed. Similar statements were made in reference to the copies of exhibit 7. In collecting the exhibits from the jury, the trial judge stated to the jurors: “But let me advise you that it is all right for you to take notes, but these are your personal notes and they're not to be shared with anyone until the case is finally submitted to you, and then you may refer to them in your deliberations, but until such time they're your own personal notes, not to be shown to anyone, not to be shown to any of your fellow jurors, your spouse or your neighbors, anybody. . . . [B]ut you're entitled to take your own notes and keep them. But keep in mind you are to keep your own counsel and you are not to share them with anyone.” These statements of ground rules by the trial judge were also admonitions. They clearly establish that it was the court's intention that the exhibits and the notes thereon would be private, for the jury alone, and not for anyone else's use or observation. Appellant does not argue that he did not so understand.

Appellant maintains that as exhibits he was absolutely entitled to look at the copies of the diagram and sketch, including the writing of the jurors, and that the trial judge could not prevent him from doing so.

A trial court has the inherent power to exercise its discretion and control over all proceedings relating to litigation before it. (People ex rel. Dept. Pub. Wks. v. Richman (1966) 242 Cal.App.2d 380, 386, 51 Cal.Rptr. 454; Johnson v. Banducci (1963) 212 Cal.App.2d 254, 260, 27 Cal.Rptr. 764.) The court's power includes the power to regulate the proceeding of the trial before it, to effect the orderly disposition of issues presented, and to control the conduct of all persons in any manner connected therewith. (People v. Miller (1960) 185 Cal.App.2d 59, 77, 8 Cal.Rptr. 91.) Appellant's action was a knowing affront to the power of the trial court to control the proceedings before it.

There was no purpose in appellant's inspecting copies of the exhibits (when the original was available) other than the reading of the notes of the jury. Appellant does not contend otherwise. Instead he asserts that he had the duty on behalf of his client to read the notes. An attorney is an “officer of the court” with public duties and responsibilities incident to that status. (See 1 Witkin, Cal.Procedure (2d ed. 1970) Attorneys, § 2, p. 11, and authorities cited therein.)

A distinction must be drawn between proper aggressive advocacy and misconduct of an attorney. (Marcus v. Palm Harbor Hospital, Inc. (1967) 253 Cal.App.2d 1008, 1013-1014, 61 Cal.Rptr. 702.) Appellant's conduct exceeded the bounds of aggressive advocacy. He read the private notes of the jury through devious means and in contravention to the clearly expressed intent of the trial judge. By this action he intended to gain a substantial and unfair advantage over his adversary. We cannot countenance such actions as aggressive advocacy or as duty to client. We conclude that appellant's actions involved serious misconduct.

A mistrial is the termination of a trial prior to completion, on order of the judge, for error too serious to be corrected. (4 Witkin, Cal.Procedure (2d ed. 1971) Trial, § 130, p. 2954.) The grounds for a mistrial may be any misconduct or irregularity that either legally or practically prevents either party from having a fair trial. (Ibid.) In light of the potential advantage that appellant could have gained from reading the notes of the jury, the trial judge was well within his discretion in ordering the mistrial. A trial should not only be fair in fact, it should appear to be fair. (Hansen v. Hansen (1965) 233 Cal.App.2d 575, 584, 43 Cal.Rptr. 729.) This is not the type of error that admonition to the jury could cure.

We hold that the trial court's action in granting the mistrial due to appellant's serious misconduct was neither an abuse of discretion nor contrary to law.

II

The more serious issue of sanctions appears considerably simplified after recitation of the causes for the mistrial. Does the trial court have authority to impose sanctions? We believe it does.

It is the duty of a court to safeguard and promote the orderly and expeditious conduct of its business and to guard against inept procedures and unnecessary indulgences which would tend to hinder, hamper or delay the conduct and dispatch of the proceedings. (People v. Miller, supra, 185 Cal.App.2d at p. 78, 8 Cal.Rptr. 91.) In addition, Code of Civil Procedure section 128 codifies at least a portion of the court's inherent power. Subdivisions 3, 4 and 5 provide the court ample authority to impose sanctions. They read: “Every court shall have power:

“ . . .tio

“3. To provide for the orderly conduct of proceedings before it, or its officers;

“4. To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein; (and)

“5. To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto.”

It is the judge's duty to protect the integrity of his court. The obligation is upon him by his oath to maintain the respect due to the court over which he presides. (In re Ciraolo (1969) 70 Cal.2d 389, 394-395, 74 Cal.Rptr. 865, 450 P.2d 241.)

A court has inherent power, independent of the Code of Civil Procedure, to exercise its discretion and control in all proceedings relating to the litigation before it. (Bloniarz v. Roloson (1969) 70 Cal.2d 143, 146, 74 Cal.Rptr. 285, 449 P.2d 221; People ex rel. Dept. Pub. Wks. v. Richman, supra, 242 Cal.App.2d 380, 386, 51 Cal.Rptr. 454; Johnson v. Banducci, supra, 212 Cal.App.2d at p. 260, 27 Cal.Rptr. 764.) The exercise of this power rests on and is limited by the sound legal discretion of the trial court. (Bailey v. Fosca Oil Co. (1963) 216 Cal.App.2d 813, 818, 31 Cal.Rptr. 380; People v. Miller, supra, 185 Cal.App.2d at p. 77, 8 Cal.Rptr. 91.) A court is not necessarily limited to the power of contempt.2 It may adopt any suitable process or mode of proceeding that may appear most conformable to the spirit of the law. (Kent v. Superior Court (1951) 106 Cal.App.2d 593, 595, 235 P.2d 420.)

Respondent requested as sanctions against the appellant only the amount of the fees for his attorney. The request was modest. He did not request all of the various expenses that would be caused in two days of trial. The trial judge hoped that by imposing the sanctions he could maintain the integrity of the court and at the same time do justice by causing appellant to pay for a part of the damage he had caused through his misconduct.

Since the order imposing the sanctions served the purposes of maintaining the court's integrity and control, punishing the appellant for his serious misconduct, and reimbursing the respondent for a portion of his losses caused by appellant's misconduct, we believe the court acted within its discretion in imposing the sanctions.

Under the circumstances we hold that the trial court had statutory and inherent power to impose the sanctions.

III

Was the trial judge so biased and prejudiced against appellant that a fair hearing on the sanctions was denied? A court must safeguard and promote the orderly and expeditious conduct of its business. The very nature of the situation we review requires that the judge presiding at trial be the one to take the action to protect the integrity of his court.3

We do not find the bias and prejudice alleged by appellant. Upon learning of the appellant's conduct the trial judge indicated that he considered the matter a very serious one. Thereafter appellant steadfastly insisted that he had the absolute right to look at the exhibits and that the trial court could not prevent him from doing so. The appellant maintained this position throughout the later discussions with the trial court. The trial judge was disturbed, as we are, by appellant's stated inability to understand the seriousness of his acts. However, prior to granting the motion for sanctions, the trial judge continued the matter. The matter was once again continued for more thought to enable the trial judge to proceed not “precipitously, but with calmness and a consideration of the laws.” Finally, when the matter came up for further hearing on the sanctions, the court again indicated that if appellant recognized the seriousness of his misconduct the court might not feel obliged to impose sanctions. Despite attempts of the trial judge to educate appellant as to the seriousness of his misconduct, appellant adamantly refused to concede any error of judgment on his part. We find no bias or prejudice in the actions of the trial judge in imposing the sanctions against appellant.

The order of the trial court imposing sanctions against appellant Maxim N. Bach, for causing a mistrial in the action of Bauguess v. Paine by his serious misconduct, is affirmed.

FOOTNOTES

1.  The right of the jury to privacy in its deliberations is also recognized. “Every person who, by any means whatsoever, willfully and knowingly, and without knowledge and consent of the jury, records, or attempts to record, all or part of the proceedings of any trial jury while it is deliberating or voting, or listens to or observes, or attempts to listen to or observe, the proceedings of any trial jury of which he is not a member while such jury is deliberating or voting is guilty of a misdemeanor.” (Pen.Code, s 167.)

2.  Appellant implies that contempt is the only appropriate proceeding open to the trial judge under the circumstances of this case. He is particularly critical of the use of the sanction power to reimburse a litigant for attorney fees. While not exactly analogous we believe the statutory authority for imposition of attorney fees pursuant to a violation of a discovery order (Code Civ.Proc., § 2016, et seq.) is instructive as to the power a court has to assure that proceedings before it be fair. Contempt would have been appropriate, but we cannot say sanctions were not.

3.  We reject appellant's argument that the trial judge should not have heard this matter. The judge's effort was to protect the process of a fair trial and the integrity of the court. It was not personal.

REYNOSO, Associate Justice.

REGAN, Acting P. J., and EVANS, J., concur.