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District Court of Appeal, Second District, Division 1, California.


Civ. 12259

Decided: July 14, 1939

William C. Ring, of Los Angeles, for petitioner. John H. O'Connor, Co. Counsel, Douglas De Coster, Asst. Co. Counsel, Loyd Wright and Charles E. Millikan, all of Los Angeles, for respondent Superior Court.

Petitioner seeks a writ of mandate to compel the respondent court “to order the said Gertrude Temple to give her deposition”. The material facts to be considered are that there was pending in respondent court an action in which petitioner herein appeared as plaintiff and in which Gertrude Temple and G.F. Temple were named defendants and duly filed their answer therein. On March 14, 1939, the defendants in said action served and filed a notice of motion to dismiss the same on the ground that it had not been brought to trial within two years from the commencement thereof. The motion to dismiss was noticed for and actually heard on March 22, 1939, at which time the respondent court made its order granting the same. From such ruling petitioner herein as plaintiff duly appealed to this court, and at the time of the filing of this petition for writ of mandate herein, the proposed bill of exceptions was awaiting settlement by respondent court.

Subsequent to the filing of the notice of motion to dismiss, but prior to the ruling thereon, petitioner herein, as plaintiff in the aforesaid pending action, obtained from respondent court, the issuance of a subpoena requiring Gertrude Temple, one of the defendants therein, to appear and give her deposition on March 30, 1939. On March 29, and after the minute order was made granting the motion to dismiss, the defendant Gertrude Temple obtained an order of the court continuing the time for the taking of her deposition to April 8. On the last-named date Mrs. Temple appeared at the appointed time and place, but acting on the advice of her counsel, refused to be sworn or give any testimony as a witness, on the stated ground that the proceedings for the taking of her deposition having been commenced prior to the dismissal of the action by the court, and such proceedings for the taking of her deposition having been then pending, they were fully and completely terminated by and through the dismissal of the action. Thereafter the petitioner herein caused to be filed in respondent court the certificate of the designated notary public, reciting the foregoing facts and proceedings and reporting to respondent court the refusal of said Gertrude Temple to be sworn as a witness or to give her deposition, and contemporaneously therewith sought from respondent court its order and subpoena commanding and directing said Gertrude Temple to give her deposition. In denying the requested order, respondent court made the following minute entry on its records:

“This matter comes before the Court on an ex parte application of plaintiff for an Order to Show Cause why Gertrude Temple should not give deposition. The proposed order is refused because the case has been dismissed, and the judgment pursuant to the order of dismissal is now pending on appeal, and that the taking of such deposition should be deferred until determination of said appeal, for the convenience of the parties and in the interests of justice; the Court having read and considered only the certificate of Notary Public, Memorandum of Points and Authorities, a copy of affidavit of Wm. C. Ring, copy of Notice to Take Deposition, copy of Subpoena re Deposition, and Affidavit of Service of same.”

To our alternative writ heretofore issued respondent appears by demurrer and answer, contending first that the action out of which this proceeding arose was and is appealable directly to the Supreme Court (art. VI, sec. 4, Const. Calif.), and that by reason thereof this court should refuse to take jurisdiction or issue a writ of mandate herein. Indisputably, this court has jurisdiction to issue such writ; but it has been and is a matter of practice and policy that where cases were in the superior court, both the Supreme Court and District Courts of Appeal have refrained from taking jurisdiction when the cause involved was one originally appealable to the other court. Favorite v. Superior Court, 181 Cal. 261, 265, 184 P. 15, 8 A.L.R. 290; Collins v. Superior Court, 147 Cal. 264, 81 P. 509; Estate of Turner, 39 Cal.App. 56, 177 P. 854. If, therefore, by granting the petition now before us questions involved in the appeal when it comes before the Supreme Court would necessarily be determined by this court, we would undoubtedly invoke the rule just mentioned. But such is not the case here. The sole issue upon the appeal is whether or not the trial court abused its discretion in dismissing the action for lack of prosecution, while the only question involved in the proceeding before us is the right of petitioner to compel Mrs. Temple to give her deposition while the case is on appeal after the dismissal order made while the deposition proceeding was pending in the trial court. Whatever action we here take cannot in any manner affect or concern the appellate tribunal reviewing the question presented on the main appeal.

The next ground urged by respondent is that the dismissal of the action which gave rise to this proceeding, at a time when the proceeding for the taking of the deposition was pending, had the necessary effect and result of terminating all the pending proceedings in the dismissed action, including all proceedings and process incidental to the taking of Mrs. Temple's deposition. In this contention respondent cannot be sustained, for it is expressly provided by section 946 of the Code of Civil Procedure that upon the perfection of an appeal to the Supreme Court or this court and the stay of all proceedings upon the judgment or order appealed from and matters embraced therein, the superior court may nevertheless “proceed upon any other matter embraced in the action and not affected by the order appealed from”. In San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 34, 99 P. 359, 360, 17 Ann.Cas. 933, it was held that the language of section 2021 of the Code of Civil Procedure is “very sweeping and comprehensive, and clearly includes, if taken literally, all the time that an action is pending, that is to say, all the time from the service of summons or the appearance of the defendant until ‘its final determination upon appeal or until the time for appeal has passed unless the judgment is sooner satisfied (Code Civ.Proc., § 1049).’ ” (Emphasis added.) Therefore, without doubt the superior court under the facts of the instant case possessed the right and power to order the taking of the deposition of a defendant therein, and if the court possessed such power it certainly also possessed the power to compel a party defendant to give her deposition after judgment of dismissal upon an order theretofore issued, and such power continues until the final determination of the pending appeal.

It is next urged by respondent that no reason or necessity exists for the issuance of a writ of mandate because petitioner herein has filed a new action in the superior court of Los Angeles county naming Gertrude Temple as one of the defendants, and in which said action the same contract and cause of action is sued upon as in the case which gave rise to the proceeding now before us. This claim is unavailing, for it is not here claimed, nor is there any showing by respondent, that defendant Mrs. Temple either has been served with summons or has appeared in the subsequent action so as to entitle plaintiff herein to take her deposition. (Code Civ.Proc., sec. 2021.) The statute confers upon either party to a lawsuit the right to take the other's deposition in any pending action after service of the summons or appearance therein, and the existence of a kindred action involving in whole or in part the same parties and subject-matter does not operate as a bar to the exercise of that right.

Finally, respondent earnestly insists that the trial court is not compelled under all circumstances to order the issuance of a subpoena or commission to take a deposition, at any time a request is made therefor, and that the trial court may exercise its discretion and refuse the issuance thereof under certain circumstances; and further, that it is not an abuse of such discretion for a trial court to refuse to order a party to appear and give her deposition when, as here, an action has been dismissed. While this contention would seem to find support in the case of Patrick Farms, Inc., v. Superior Court, 13 Cal.App.2d 424, 56 P.2d 1283, it is noteworthy that no petition for hearing in the Supreme Court was filed in the cited case; but in the cases of San Francisco Gas & Electric Co. v. Superior Court, supra, decided by the Supreme Court, and Most v. Superior Court, 25 Cal.App.2d 394, 77 P.2d 532 (hearing denied by the Supreme Court), it was decisively held that it does not rest in the discretion of the trial court or judge to refuse a commission in the cases defined by the code. Therefore, where, as here, petitioner had obtained the subpoena directing Mrs. Temple to give her deposition, he had a right to the direction of the superior court that proper questions should be answered by her with a view to making preparations for a trial of the action in the event the order of dismissal is reversed on appeal. The right just mentioned is not a matter affected by the judgment appealed from. Conceding, as was decided in Levin v. Superior Court, 139 Cal.App. 693, 34 P.2d 832, that the right to take a deposition is not absolute, but must be taken with such qualifications as the facts of each case may demand, those qualifications are restricted to cases where the issuance of the order or commission would be an idle act, something the law never requires. Such, for instance, as was pointed out in the last-cited case, where the application for the commission is made at a date so late before the trial that the deposition could not be taken in time to be used, and where the granting of a continuance of the trial date in order to take the deposition would prejudice the rights of others. No such reason or contingency is made apparent to us in the instant proceeding. The liberal construction of section 2021 of the Code of Civil Procedure is undoubtedly inspired by the policy of the law that when litigation is finally determined it shall result in justice being done, for which reason the law is liberal in the means it affords to perpetuate testimony, to the end that all reasonable opportunity be afforded the parties to present a legitimate claim or defense if one exists.

It seems clear that the respondent court in this present matter had no discretion to refuse the order which petitioner sought to compel the witness Gertrude Temple to appear and give her deposition.

The demurrer is overruled and the peremptory writ will issue as prayed for.

WHITE, Justice.

I concur: DORAN, Acting P.J.

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Docket No: Civ. 12259

Decided: July 14, 1939

Court: District Court of Appeal, Second District, Division 1, California.

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