HAYS v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY (1940)

This is an application for the writ of mandamus to compel the respondent superior court to order Gertrude Temple to give her deposition as a defendant in the case of Hays v. Temple et al., commenced in that court on October 7, 1936.

On March 14, 1939, said defendant and her codefendant G. F. Temple, served and filed a notice of motion to dismiss said action on the ground that the plaintiff had failed for more than two years to bring the action trial. Pursuant to the notice the motion was heard and granted on March 22, 1939. Judgment of dismissal was entered March 31, 1939. On that day the plaintiff, petitioner here, served and filed a proposed bill of exceptions and on the next day, April 1, filed a notice of appeal from the judgment of dismissal. Settlement of the proposed bill was pending when the present proceeding was commenced.

On March 17, 1939, or three days after the notice of motion to dismiss was filed, the plaintiff, on affidavit, applied to said court for an order to take the deposition of Gertrude Temple. The order was issued commanding her to appear at a designated hour and place on March 30, 1939, to give her deposition in said action. She appeared on April 8, to which time the matter had been continued, but refused to be sworn or to testify on the ground that the action had been dismissed. She was then cited to appear and show cause why she should not be required to give her deposition. Upon hearing the court ruled that ‘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 the determination of said appeal, for the convenience of the parties and in the interests of justice.’

The present proceeding followed.

In response to the alternative writ the respondent court filed a general demurrer to the petition and an answer in which it was alleged among other things that on March 25, 1939, the petitioner commenced another action in said superior court, No. 437973, and entitled Jack Hays, Plaintiff, v. Gertrude Temple and S. F. Temple, Defendants; that said action is for damages for breach of contract, is between the same parties and is based on the same cause of action as the one involved in the action dismissed by order of court on March 22, 1939.

It is the petitioner's contention that he was entitled as a matter of right (1) to the issuance of the order and subpoena to take the deposition of Gertrude Temple; and (2) to compel the witness to be sworn and to testify notwithstanding the fact that in the meantime the action had been dismissed.

It may be assumed for the purposes of this proceeding that the petitioner was entitled, upon a proper showing, to the issuance of a subpoena to take the deposition of Gertrude Temple, secs. 2020, 2021, 1049, Code Civ.Proc., and that this right was not defeated by the subsequent order of dismissal that had not become final. San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 99 P. 359, 17 Ann.Cas. 933. It may also be assumed that upon the application therefor the showing was sufficient ex parte to justify the order for the issuance of the subpoena. But from these assumptions it does not follow that the petitioner was entitled, as a matter of right, to an adjudication in contempt of the witness who refused to answer. Such a right would result, if at all, from the showing made on the order to show cause. Thereafter, the proceeding partakes of one in the nature of contempt. Burns v. Superior Court, 140 Cal. 1, 73 P. 597; Crocker v. Conrey, 140 Cal. 213, 73 P. 1006. If a valid reason be interposed why the witness should not be compelled to answer, the court, in the exercise of a sound discretion, may refuse to employ the processes of contempt to compel the witness to answer. The court's determination must depend on the particular facts and circumstances of the case.

It should be noted that the respondent court did not refuse unreservedly to compel the witness to answer, but only ‘that the taking of such deposition should be deferred until the determination of said appeal’ from the judgment of dismissal.

In determining whether the respondent court abused its discretion in refusing to compel the witness to answer as demanded by the petitioner, it is apparent that the respondent court based its order of abatement of the contempt proceedings on the grounds that the original action of Hays v. Temple was one for money had and received and for an accounting and that in appraising the rights of the petitioner under sections 2020 and 2021 of the Code of Civil Procedure (see Pollak v. Superior Court, 197 Cal. 389, 393, 240 P. 1006), the ends of justice would be promoted by a delay in the taking of the deposition until it should be determined on appeal whether the plaintiff had any case in which the deposition could be used.

On the record before the trial court it cannot be said that the petitioner had shown such a clear right to an order compelling the witness to answer without delay as would justify the control of the action of the trial court by means of the writ of mandamus.

In addition to the showing in favor of the trial court's action, it appears by the answer of the respondent in this proceeding that a second action between the same parties and involving the same subject matter was commenced in said court three days after the original action was ordered dismissed. If the judgment of dismissal be affirmed, clearly the petitioner would have no right to compel the witness to answer in the dismissed action. If the judgment of dismissal be reversed, it cannot now be assumed that the trial court would then refuse to enforce such rights as the petitioner may then appear to have.

The peremptory writ is denied.

I dissent.

As I understand the opinion approved by a majority of this court, the petitioner had the right to take the deposition of defendant, Gertrude Temple, notwithstanding a judgment of dismissal had been entered in the action in which the deposition was sought to be taken and an appeal had been taken from said judgment, but the majority opinion appears to hold that the defendant was justified in refusing to answer questions propounded to her on the taking of said deposition, and the trial judge was justified in refusing an order to petitioner directing said defendant to answer said questions upon the ground that the deposition might be taken at a later date.

In my opinion, the trial judge had no discretion in this matter, and it was his plain duty to make the order requested by petitioner directing the witness to answer any questions which might be propounded to her on the taking of her deposition which were germane to the issues in the case. This view is clearly in accord with the provisions of the Code of Civil Procedure authorizing the taking of depositions, and with all of the cases on the subject, with the exception of Patrick Farms, Inc., v. Superior Court, 13 Cal.App.2d 424, 56 P.2d 1283. The case just cited is contrary to all of the other cases dealing with the subject, and in my opinion the rule announced therein is unsound and should not be followed.

I think it is obvious that section 2021 of the Code of Civil Procedure confers upon a litigant an absolute right to take depositions in the cases provided for therein. By the express provisions of this section such depositions may be taken ‘at any time after the service of the summons or the appearance of the defendant’, which has been construed to mean at any time before the judgment becomes final. San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 99 P. 359, 17 Ann.Cas. 933. No discretion is conferred upon a trial court to determine when a litigant may take a deposition, and it is a matter over which the trial court has no control whatever, except to use the process of the court to enforce the provisions of the code when necessary to aid the party who is seeking to obtain the deposition.

It is well recognized by trial lawyers that the taking of depositions long prior to the time when they are to be used is essential to the proper and successful handling of cases, and the legislature in its wisdom saw fit to confer upon litigants the absolute right to take depositions at any time they see fit after the service of summons or the appearance of the defendant in pending actions.

The effect of the decision of the District Court of Appeal in the case of Patrick Farms, Inc., v. Superior Court, supra, and the majority opinion of this court in the case at bar, is to confer upon a trial court the power to specify the time when a litigant may take a deposition in certain cases, or stating it another way, to require a litigant to defer the taking of a deposition to a time when it appears to a trial court reasonable and proper that such deposition be taken. In other words, these decisions interpret section 2021 of the Code of Civil Procedure to read: ‘The testimony of a witness in this State may be taken by deposition in an action at any time after service of the summons or the appearance of the defendant, except in cases where a trial court for good cause shown shall otherwise specify.’ (Italicized portion added.) These decisions amount to nothing less than judicial legislation. They read an exception into section 2021 of the Code of Civil Procedure which is not there and which should not be there.

A litigant should not be subjected to the uncertainty of a discretionary ruling of a trial judge every time he attempts to procure evidence by deposition which the litigant thinks is essential to the proper preparation or presentation of his case.

The administration of justice is already so cumbersome and burdensome that poor litigants have great difficulty in meeting the requirements now imposed upon them in the presentation of their cases to our courts, and if we are to lay down a rule which will enable one who desires to conceal and suppress evidence to successfully resist the taking of his deposition by the refusal of a trial judge to exercise his discretion in favor of the taking of such deposition, we are increasing such burden without in any way improving the administration of justice. In fact, the administration of justice is usually aided by requiring full disclosure of all facts within the knowledge of either party to the litigation. Furthermore, it quite often happens, and it has been approved as proper legal procedure, that depositions may be taken to determine whether it is advisable to further prosecute an action, either from the standpoint of whether the party seeking to take the deposition can prevail in the action, or can satisfy any judgment which he might recover if he does prevail. Demaree v. Superior Court, 10 Cal.2d 99, 73 P.2d 605.

To say that the effect of the majority opinion in the case at bar does not deny a litigant his statutory right to take a deposition ‘at any time after service of the summons or the appearance of the defendant’ is to disregard the inevitable consequences of long delays in securing evidence. It may be that if and when the judgment of dismissal in the case at bar is reversed, Gertrude Temple may be deceased, or out of the jurisdiction where it would be extremely difficult or even impossible to secure her deposition. The fact that the case involves an accounting and that the plaintiffs right to an accounting must be first determined before an accounting can be ordered, does not change the situation. If such a rule is to be invoked, then in every case where certain issues must be determined before evidence can be offered relating to other issues in the case, a litigant would be barred from taking depositions relating to any subject matter except the preliminary issues until after such issues were determined; in other words, in a case in eminent domain a litigant would be barred from taking the deposition of a witness on the issue of damages until after the issue of necessity had been determined, and in a personal injury case a litigant would be barred from taking a deposition relating to the nature and extend of the injuries suffered by the plaintiff until the issue of liability was determined. A complete answer to the reasoning advanced in the majority opinion in the case at bar and in the opinion in the case of Patrick Farms, Inc., v. Superior Court, supra, is that no power, authority, or discretion is conferred upon the trial court to limit or restrict the right of a litigant to the taking of depositions relating to any issue in an action until some other issue is determined, and since the right to take a deposition in this state is purely statutory, the litigants should be permitted to exercise the right conferred upon them by statute without being hampered by restrictions imposed by the court in derogation of express statutory authority.

It has been repeatedly held that when a litigant follows the procedure provided for in the Code of Civil Procedure for the taking of a deposition and the witness refuses to answer proper questions propounded to him on the taking of his deposition, and such refusal is certified to a judge of the superior court, such judge has no discretion to refuse to exercise the powers which the law has invested in him so far as necessary to secure to the litigant the right which the law confers upon him to take the deposition of a witness. 9 Cal.Jur., p. 403, sec. 8; p. 407, sec. 10; Burns v. Superior Court, 140 Cal. 1, 73 P. 597; Crocker v. Conrey, 140 Cal. 213, 218, 73 P. 1006; Scott v. Shields, 8 Cal.App. 12, 96 P. 385; San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 99 P. 359, 17 Ann.Cas. 933; Kibele v. Superior Court, 17 Cal.App. 720, 121 P. 412; Rossbach v. Superior Court, 43 Cal.App. 729, 185 P. 879.

There is no basis whatever for the contention that a trial court should be invested with a discretion which it might exercise to relieve a witness from giving his deposition because the action in which the deposition is taken may not be brought to trial for an indefinite time, or may never be brought to trial, as no such discretion is provided for in our statutes.

It is obvious that the legislature did not see fit to include in the statutory provisions authorizing the taking of depositions, a safeguard against a litigant abusing the privilege thus granted, as the expense to which a litigant is subjected in the taking of a deposition is a sufficient deterrent to restrain the use of the privilege for mere personal gratification. This thought is clearly expressed by Chief Justice Beatty in the case of San Francisco Gas & Electric Co. v. Superior Court, supra. At page 37 of 155 Cal., at page 361 of 99 P., 17 Ann.Cas. 933, of the opinion in that case, he said: ‘The only substantial argument against this construction of statute is that it enables a contentious litigant to subject the seccessful party to an action to great and unnecessary expense in the taking of depositions pending a frivolous appeal. This objection, however, does not seem to have been deemed by the Legislature sufficiently grave to prevent the enactment of a statute which easily admits of the same abuses, even when restricted in its application to pending issues, and to controversies which may never reach an issue. There seems also to be less reason to apprehend the inconveniences suggested when it is remembered that the party taking depositions in a case like this must pay the costs of the proceeding without hope of recovering them back except in the event of a reversal of the judgment or order, and not then unless the final judgment is in his favor. Moreover, the respondent may, in case of an appeal manifestly frivolous, ignore the whole proceeding to take new depositions, or, if he deems it unsafe to omit the employment of counsel to attend and cross-examine, he may invoke the power of this court to impose an adequate penalty, on affirmance of the judgment, to recompense him for the unnecessary expense to which he has been subjected in consequence of a frivolous appeal. In view of these considerations, it is not to be feared that a liberal construction of the Code provisions in question will result in serious abuses.’

Furthermore, the 1939 legislature, St. 1939, p. 1817, added section 1032a to the Code of Civil Procedure, which provides that the prevailing party may redover as costs, any expenditures he is required to make for a copy of any depositions taken in an action, which furnishes an added deterrent against a litigant resorting to the practice of taking depositions which are not necessary for the proper presentation of his case.

The majority opinion appears to confuse the procedure taken by petitioner in the case at bar with a contempt citation against the witness. In this, it is clearly erroneous, as the order prayed for in the trial court was that the witness be directed to give her deposition. If she thereafter refused to appear and be sworn, or give her deposition, and she was cited to show cause why she should not be punished for contempt of court for such failure, she would then have the right to present such defense as might be available to her, such as illness, or the necessity that she be at some other place at the time she was directed to submit to the taking of her deposition. On the hearing of such citation, of course, the trial court would have discretion to determine whether or not she was guilty of contempt of court, but such is not the situation in the case at bar. In my opinion, the witness furnished no justifiable excuse for her refusal to give her deposition, and it was the unquestionable duty of the trial judge to make an order directing her to submit to the taking of her deposition or be adjudged guilty of contempt of court.

In view of what I have stated above, the petitioner is clearly entitled to a writ of mandate and a peremptory writ should issue forthwith.

I concur in the conclusion that the petitioner is entitled to a peremptory writ of mandate.

PER CURIAM.