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DALY v. DUNCAN (1976)

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

Stephanie J. DALY et al., Petitioners, v. SUPERIOR COURT of the State of California IN AND FOR the CITY OF SAN FRANCISCO, Respondent; George DUNCAN et al., Real Parties in Interest.

Civ. 38351.

Decided: May 07, 1976

Herron & Watson, Frederick E. Watson, San Francisco, for petitioners. Gerald P. Martin, Jr., Oakland, for real party in interest Robert Ryan. Hession, Creedon, Hamlin, Kelly, Hanson & Farbstein, Francis J. Stillman, San Mateo, for real party in interest George Duncan.

Petitioners, the plaintiffs in a civil action to recover damages for wrongful death, for intentional infliction of mental distress and for battery, seek a peremptory writ of mandate ordering the respondent court to fashion an appropriate protective order (Code Civ.Proc., § 2019, subd. (b)(1)) granting use and derivative use immunity to the real parties in interest, three defendants in the pending civil suit, who each claimed his privilege against self-incrimination, and compelling those defendants to respond to discovery initiated by petitioners. Petitioners also seek a peremptory writ of prohibition restraining the respondent court from enforcing its order directing petitioners to answer interrogatories propounded by said defendants in the civil action. The latter relief was only sought in the event this court denied the relief sought by the petition for writ of mandate. Pursuant to a further prayer in the petition, we issued a stay of the trial court's order compelling the petitioners to answer those interrogatories pending determination of the issues raised by the petition. Subsequently we issued an alternative writ of mandate as prayed for in the petition.

Real party in interest Duncan, after filing opposition of the petition (Cal.Rules of Court, rule 56(b)), filed a demurrer to the petition by way of return to the alternative writ, setting up among other objections, the petitioners' laches in attacking the failure of the trial court to fashion an appropriate protective order. Real party in interest Ryan filed a return in which he denied that he had propounded any interrogatories to petitioners, denied that petitioners were entitled to the relief sought by their petition for writ of mandate, generally, on the merits and, more specifically, because of the terms of a settlement agreement entered into between petitioners and the insurance carrier for Ryan's union, on behalf of the union, Ryan and other named defendants.1 No appearance was made on behalf of real party in interest Olsen.2

On review of the record it is determined that petitioners are not entitled to the relief sought in their petition for a writ of mandate because there was no abuse of the trial court's discretion in denying the orders sought by petitioners, and because review of those orders of denial should be refused on the ground of petitioners's laches. It is further determined that the petitioners are not entitled to a writ of prohibition against the order directing them to answer the interrogatories propounded on behalf of certain defendants because to do so would unduly burden such defendants' exercise of their constitutional privilege against self-incrimination.

In the principal action, petitioner Stephanie J. Daly, the widow of Allen Wesley Daly, seeks damages for intentional infliction of emotional distress by reason of the fire bombing of their residence on June 15, 1970 and June 16, 1970, and an assault on her husband on July 4, 1970. She and her two sons also seek damages for the wrongful death of Mr. Daly which occurred on July 16, 1970, as a result of that assault. As special administratrix, Mrs. Daly seeks damages suffered by her husband during the period he survived after the assault. The complaint was filed against two local unions, an international union, two local labor councils, and numerous individuals.

The decedent was na employee of the Independent Journal, a newspaper in San Rafael, California. He crossed picket lines continuing to work during a stride at the Independent Journal which began in January 1970. The strike was authorized by the International Typographers Union (ITU), although the actual striking union was local 21. Assistance was given to local 21 by local 18.

Petitioners believe there is evidence that would tend to indicate that Ryan (shop steward of local 18), Duncan (an employee of ITU placed in charge of conducting the strike), and Olsen (president of printers local 21) conspired with and directed Thurber in his actions against Daly, the decedent. Thurber was convicted in the San Francisco Superior Court of the murder of decedent and is presently serving a life term prison sentence for that murder.


When Thurber, Ryan, Duncan and Olsen were deposed they refused to answer on the grounds of self-incrimination. Petitioners on October 10, 1973 and February 7, 1974, moved the trial court for a protective order granting the defendants immunity.

On May 29, 1974, the motions to compel the defendants to answer under a protective order was denied, but the court did provide that defendants Ryan and Duncan would each be precluded from testifying at the trial unless he waived his privilege against self-incrimination. The report attached to the court's order indicates, ‘. . . the Court feels that such procedure, if proper at all, should not be used in a case where the compelled testimony might tend to prove the commission of serious crimes, such as conspiracy to commit murder.’

On August 27, 1974, the Supreme Court of this state filed its opinion in People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421, 115 Cal.Rptr. 812, 525 P.2d 716. Thereafter petitioners, at a hearing on May 27, 1975, sought reconsideration of their motion to compel testimony under a protective order. On June 16, 1975, the court denied reconsideration of the motion previously denied in connection with the defendants Duncan and Ryan, and an original similar motion with respect to the defendant Olsen. The court observed, ‘. . . the application of C.C.P. § 2019 in the granting of use immunity under the circumstances of this case would not be consistent with both legislative intent and the effective enforcement of the criminal laws.’

The record reflects that defendant Duncan persisted in invoking his Fifth Amendment privilege against self-incrimination as late as January 13, 1976, when he claimed the privilege in answers to petitioners' tenth and eleventh sets of interrogatories.


Preliminarily we were faced with the question of whether the issues raised by petitioners' petition warranted consideration by issuance of the alternative writ. ‘The prerogative writs have been used frequently to review interim orders in discovery cases [citations]. But this does not mean the these discretionary writs will or should issue as of course in all cases where this court may be of the opinion that the interim order of the trial court was erroneous. In most such cases, as is true of most other interim orders, the parties must be relegated to a review of the order on appeal from the final judgment. As inadequate as such review may be in some cases, the prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases. . . .’ (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185, fn. 4, 23 Cal.Rptr. 375, 378, 373 P.2d 439, 442. See also Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5, 123 Cal.Rptr. 283, 538 P.2d 739; Roberts v. Superior Court (1973) 9 Cal.3d 330, 335–336, 107 Cal.Rptr. 309, 508 P.2d 309; Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169–171, 84 Cal.Rptr. 718, 465 P.2d 854; Carlson v. Superior Court (1961) 56 Cal.2d 431, 435–436, 15 Cal.Rptr. 132, 364 P.2d 308; and Flora Crane Service, Lnc. v. Superior Court (1965) 234 Cal.App.2d 767, 775–776, 45 Cal.Rptr. 79.) In issuing the alternative writ we were influenced by the importance of the questions raised by the impingement of the party-witness' claim of his privilege against self-incrimination on the liberal policy in favor of discovery, and the power of the court to compel answers under a protective order. We therefore address the merits.


In Byers v. Justice Court (1969) 71 Cal.2d 1039, 80 Cal.Rptr. 553, 458 P.2d 465 [vacated on other grounds California v. Byers (1971) 402 U.S. 424, 91 S.Ct. 1535, 29 L.E.2d 9 (plurality opinion)], the court considered the constitutionality of subdivision (a) of section 20002 of the Vehicle Code, the So-called ‘hit-and-run’ statute, in the light of the Fifth Amendment privilege against self-incrimination. The court concluded, ‘We are satisfied that the privilege is applicable when a driver of a motor vehicle involved in an accident is confronted with a statutory requirement to stop and divulge his identity and reasonably believes that compliance with the statute will result in self-incrimination. [Citations.]’ (71 Cal.2d at p. 1047, 80 Cal.Rptr. at p. 559, 458 P.2d at p. 471. Cf. California v. Byers, supra, 402 U.S. 424, 434 and 458, 91 S.Ct. 1535, 29 L.Ed.2d 9.) Nevertheless, in order to carry out the legislative intent ‘to protect property owners form financial loss by requiring drivers involved in accidents resulting in property damage to disclose their identities,’ the court effected “an accommodation that will permit government to collect vitally needed information without impairing the purposes of the privilege.” (71 Cal.2d at p. 1049, 80 Cal.Rptr. at p. 560, 458 P.2d at p. 472.) It relied upon decision of the United States Supreme Court and formulated the following rule, ‘In brief, these decisions provide (1) that the state may require a person to disclose information otherwise subject to a claim of privilege if in place of the protection conferred by the privilege there is substituted another protection, having the same scope and effect as the privilege, namely, immunity from use of the information or its fruits in connection with a criminal prosecution against the person; and (2) that, when consistent with both legislative intent and effective enforcement of the criminal laws, a court may hold that such immunity exists, and therefore that disclosure is required, despite the absence of any specific legislative grant of immunity.’ (Id., emphasis added.)

In People v. Superior Court (Kaufman), supra, the court applied the foregoing rule in granting a peremptory writ which directed the trial court, on the People's motion in a civil action involving charges of consumer fraud and unfair competition, to fashion and issue an adequate protective order to compel a defendant in that action, who had claimed the privilege against self-incrimination conferred by the State and United States constitutions, to respond on deposition and trial to all proper inquiries, including those which, except for the protective order, would tend to incriminate him. (12 Cal.3d at pp. 428 and 433, 115 Cal.Rptr. 812, 525 P.2d 716. See also Maness v. Meyers (1975) 419 U.S. 449, 462, 95 S.Ct. 584, 42 L.Ed.2d 574, fn. 10; Kastigar v. United States (1972) 406 U.S. 441, 445–463, 92 S.Ct. 1653, 32 L.Ed.2d 212; Marchetti v. United States (1968) 390 U.S. 39, 58–60, 88 S.Ct. 697, 19 L.Ed.2d 889; Murphy v. Waterfront Comm'n. (1964) 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678; In re Lifschutz (1970) 2 Cal.3d 415, 431, 435 and 437–438, 85 Cal.Rptr. 829, 467 P.2d 557; People v. Superior Court (Taylor) (1975) 53 Cal.App.3d 996, 999–1003, 126 Cal.Rptr. 297; and Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 469–470, 122 Cal.Rptr. 61.)

The foregoing precedents do not support the issuance of an order in the form requested by petitioners. In the cases involving the assertion of the privilege against self-incrimination there is a common thread. The state itself is seeking a waiver of the privilege, and in so doing agrees expressly or impliedly that it will not use the information furnished or other information derived from that testimony against the witness in a criminal case. In the case of the physician and patient privilege, which is waived by the patient's assertion of his debility, the protective order can only be effective to the extent that it is consistent with the ascertainment of relevant facts in issue. (See In re Lifschutz, supra, 2 Cal.3d 415, 438, 85 Cal.Rptr. 829, 467 P.2d 557.)

We find no authority for permitting the private litigant, even under the auspices of the court, to waive the right of the state to enforce its criminal laws. It may be true, as urged by petitioners, that over a period of five years the state has been unable to unearth sufficient evidence to initiate criminal proceedings against any of the three defendants involved in these proceedings. It is therefore arguable that a waiver of the state's rights is warranted so that civil justice may be done, and that such course would not prejudice the state because it never would have secured the testimony which is sought in any event. On the other hand, if use and derivative use immunity is granted under conditions such as present in this case, the state, without being party to the proceedings, may find that if it prosecutes it is subject to ‘the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.’ (See Kastigar v. United States, supra, 406 U.S. 441, 460, 92 S.Ct. 1653, 32 L.Ed.2d 212.) Such a nonconsensual result cannot be lightly implied from either the general rules giving a right to recovery for civil wrongs, including wrongful death, or the provisions of the discovery statutes. The authority for criminal prosecution generally rests with the district attorney. (See People v. Superior Court (Taylor), supra, 53 Cal.App.3d 996, 1002, 126 Cal.Rptr. 297.) He is also vested with the right to confer immunity (Pen.Code, § 1324). There is no special statute giving the People, or any individual a special right to recover damages or civil penalties from another for injuries resulting from that person's criminal conduct. We are therefore constrained to rule that the power to formulate protective orders conferred by section 2019 of the Code of Civil Procedure does not extend to conferring, in proceedings to which the People are not a party, a grant of immunity from criminal prosecution, or use and derivative use immunity in a criminal prosecution of evidence so discovered.


If we were to assume that in certain cases such use and derivative use immunity could be granted, without the consent of the People, as against a witness' claim of the privilege against self-incrimination, we cannot find that the trial court abused its discretion here in denying such immunity. It found that compelling the testimony in this case under the circumstances suggested would not be consistent with both the legislative intent and the effective enforcement of the criminal laws. (See People v. Superior Court (Kaufman), supra, 12 Cal.3d 421, 428, 115 Cal.Rptr. 812, 525 P.2d 716; and Byers v. Justice Court, supra, 71 Cal.2d 1039, 1049, 80 Cal.Rptr. 553, 458 P.2d 465.) The factors outlined above which led us to conclude that such immunity cannot be granted without the consent of the People, compel the conclusion, that even if it could, it was no abuse of discretion for the court to refrain from making such an order in the absence of such consent.


Finally, we note that on January 13, 1976, at a pretrial conference, the case was set for trial on April 19, 1976, and the court ordered that all discovery be terminated 30 days prior to the trial date. It was not until January 22, 1976, more than seven months after the last order refusing the relief sought by petitioners, that they filed their petition. There is a continuing obligation to permit discovery. (See, e. g., Bolles v. Superior Court (1971) 15 Cal.App.3d 962, 963–964, 93 Cal.Rptr. 719.) That principle, however, should not permit petitioners to revive on the eve of trial issue which were determined against them and which they failed to subject to review months before. in a different setting the court in Lewis v. Superior Court (1968) 261 Cal.App.2d 736, 68 Cal.Rptr. 631, recognized that in a mandamus proceeding relief could be denied upon the ground of laches. It stated, ‘In the absence of any explanation for his delay in seeking relief from that order, we are satisfied that the demurrer must be sustained and that the petition for a writ of mandate must be denied.’ (261 Cal.App.2d at p. 741, 68 Cal.Rptr. at p. 635.) So here the failure to attempt to attack the June 16, 1975 order in timely fashion should bar the present application for the testimony under the protective order.


Our examination of the instruments under which the defendant and real party in interest Ryan was conditionally absolved of liability indicates that the petitioners waived any right to assert that he should not unconditionally assert the Fifth Amendment.


The second order under review involves balancing several conflicting policies. There is a general rule that in order to accomplish the purposes set forth in the discovery statutes, they must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of a well-established cause for denial. In Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266, the court stated, ‘For the guidance of the trial courts the proper rule is declared to be not only one of liberal interpretation, but one that also recognizes that disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it. Even in those instances wherein the statute requires a showing of good cause, that showing must be liberally construed.’ (56 Cal.2d at p. 378, 15 Cal.Rptr. at p. 100, 364 P.2d at p. 276 fn. omitted.)

Petitioners, in support of their application for a writ of prohibition against the trial court's ruling which ordered them to answer interrogatories propounded to them, rely on the principle that discovery should not be a one-way street. (See Rosemont v. Superior Court (1964) 60 Cal.2d 709, 714–715, 36 Cal.Rptr. 439, 388 P.2d 671; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274, 105 Cal.Rptr. 276; Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 204–205, 41 Cal.Rptr. 721; Mowry v. Superior Court (1962) 202 Cal.App.2d 229, 243–244, 20 Cal.Rptr. 698 [overruled on issue of privilege San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d at p. 204, 23 Cal.Rptr. 384, 373 P.2d 448; questioned on other grounds People ex rel. Dept. of Pub. Wks. v. Donovan (1964) 231 Cal.App.2d 345, at p. 347, 41 Cal.Rptr. 782]; and Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 304, 10 Cal.Rptr. 377.) In Swartzman v. Superior Court, supra, the court stated, ‘The rules of discovery contemplate two-way disclosure and do not envision that one party may sit back in idleness and savor the fruits which his adversary has cultivated and harvested in diligence and industry. Mutual exchange of data provides some protection against attempted one-way disclosure; the party seeking discovery must be ready and willing to make an equitable exchange. [Citations.]’ (231 Cal.App.2d at p. 204, 41 Cal.Rptr. at p. 727.) It also observed, ‘Clearly, petitioners sought to play their hand with their cards close to their chest while demanding that their opponent play its cards face up from the table. Such one-way discovery, no give and all take, would quickly drive fairness and mutuality out of pretrial investigation.’ (Id., p. 205, 41 Cal.Rptr. p. 728.)

In Swartzman and Mowry the adversary was seeking to refrain form disclosing something that he would utilize at the trial. In Rosemont the information would be of use to the other party in testifying at his deposition. In Thoren the recalcitrant party was precluded from using the nondisclosed witness. So here the defendants involved have been precluded from testifying because of their claim of privilege in pretrial discovery. Petitioners have already received all the relief to which they are entitled. If a party claims the privilege against self-incrimination he cannot attempt to testify partially in his defense. (See People v. Hathcock (1973) 8 Cal.3d 599, 616, 105 Cal.Rptr. 540, 504 P.2d 476; and People v. Barthel (1965) 231 Cal.App.2d 827, 834, 42 Cal.Rptr. 290.) Although the petitioners's discovery has been hampered, they are protected from surprise by the sanction imposed by the court in its earlier order.

It is questionable whether the court could properly grant the petitioners' protection from inquiry because the defendants have claimed the privilege against self-incrimination. The privilege against self-incrimination is guaranteed by the California and United States Constitution; it is recognized in the Evidence Code (§ 940) and the provisions of the Federal Constitution and is binding on the states. (Malloy v. Hogan (1964) 378 U.S. 1, 3–11, 84 S.Ct. 1489, 12 L.Ed.2d 653.) In Garrity v. New Jersey (1967) 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, the court concluded: ‘There are rights of constitutional stature whose exercise a State may not condition by the exaction of a price. . . . We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.’ (385 U.S. at p. 500, 87 S.Ct. at p. 620. See also Spevack v. Klein (1967) 385 U.S. 511, 514, 87 S.Ct. 625, 17 L.Ed.2d 574.) In the latter case the court concluded ‘that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it.’ (388 U.S. at p. 514, 87 S.Ct. at p. 627.) It is one thing to rule, as the trial court did, that if a defendant is going to waive the privilege and testify in a civil proceeding he must subject himself to discovery, and that, conversely, if he refuses to do so he cannot testify. Then there is merely an acceleration of a conscious waiver. On the other hand, the burden of proof in this case is on the petitioners. The defendant who is content to forego testifying in his own defense because of a constitutional privilege should not be forced to forego the ordinary rights of a litigant unless he waives that privilege. He has already elected to let the trial in one sense be a one-way street, having chosen to exercise his privilege and to forbear from testifying. He should hot also be denied a street map so he can ascertain what perils may lie upon that one-way street. There was no abuse of discretion in denying the petitioners a protective order and in ordering them to answer the interrogatories propounded to them.

The alternative writ of mandate is discharged. The petition for peremptory writs of mandate and prohibition is denied, and the stay heretofore granted is vacated.


1.  Petitioners' counsel agreed. ‘The release and dismissal of each individual officer named as a defendant would not be conditioned upon his testifying in any particular manner, and he would retain his privilege to take the Fifth Amendment, if he so desired while he was on the stand. He would merely have to respond to a notice to his attorney under CCP 1987(b) to appear at the trial as a witness.’

2.  At the request of petitioners the original order for issuance of a writ of mandate was amended to provide that service could be made on the respective counsel who appeared for real parties in interest as defendants in the pending civil action and service by mail was effected accordingly.

SIMS, Associate Justice.

MOLINARI, P. J., and ELKINGTON, J., concur.

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DALY v. DUNCAN (1976)

Docket No: Civ. 38351.

Decided: May 07, 1976

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

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