Rosen v. Superior Court

In an action entitled Lippert Inc. v. Al Rosen, number WEC 5920, pending in the respondent court, the court denied the motion of defendant Rosen for an order imposing sanctions pursuant to Code of Civil Procedure, section 2019, subdivision (g). Rosen has petitioned this court for a writ of mandate commanding the respondent court to desist from the trial of that action until further order of this court and commanding the respondent court to impose sanctions against plaintiff according to law. We issued an alternative writ on petitioner’s showing of probable abuse of discretion by the respondent court. (West Pico Furniture Co. v. Superior Court, 56 Cal.2d 407 , 415 [ 15 Cal.Rptr. 119 , 364 P.2d 295 ].)

The Facts

In October 1964 the plaintiff, real party in interest here, filed its complaint for damages based on alleged fraud and breach of contract by defendant Rosen, petitioner here. The gist of the complaint is that in May 1964 petitioner, herein referred to as Rosen, executed an “Assignment oe All Rights” to the real party in interest, herein referred to as Lippert, whereby he sold and transferred to Lippert a certain original story and screenplay entitled “Troubled Waters,” for which Lippert paid Rosen $5,000. It is alleged that Rosen

The action was first set for trial on April 18, 1966. On April 20 it was continued to July 6, 1966. After the continuance was granted, Lippert’s attorneys learned that one Hannah Fisher, a material witness living in New York, would be unable to be present at the trial on July 6. They therefore obtained a commission to take her deposition in New York to be used as evidence in support of Lippert’s case. The order for the issuance of the commission was made on May 27, and on the same day Lippert’s attorneys served notice on Rosen that the deposition would be taken on June 23,1966, at 2 p.m. Eastern Daylight Time “in the offices of Englander and Englander, 250 West 57th Street, New York,’’ on oral interrogatories. Pursuant to said notice J. F. Rosen, petitioner’s attorney, traveled to New York, only to learn on June 23 that the taking of the deposition had been postponed by the New York attorney employed by Lippert to take the deposition, without notice to Rosen or his attorney.

On his return to California, Rosen’s attorney noticed a motion in the respondent court for an order imposing sanctions against Lippert and its attorneys pursuant to Code of Civil Procedure, section 1019, subdivision (g). The respondent court denied the motion on July 1, whereupon Rosen filed his petition now before this court.

The rather shabby treatment accorded to Rosen’s attorney in this matter is disclosed by his declaration filed in support of his motion, a copy of which is attached to his petition here. This declaration shows without contradiction that in response to the notice to take Hannah Fisher’s deposition, Rosen’s attorney, who resides and has his office in Coachella, California, drove approximately 130 miles to the Los Angeles International Airport on Monday evening, June 20, 1966, and left that airport the next morning, flying directly to New York. Shortly before 2 o’clock on the afternoon of June 23, he arrived at the office of Englander and Englander, where he

The allegations of the declaration filed by Rosen’s attorney in support of the motion are not only uncontradieted, in the main they are confirmed by the unsworn statement written and signed by I. Englander, a copy of which was submitted to the respondent court with the declaration of Rosen’s attorney. They are also supported in several particulars by the declaration of Leonard Maizlish, one of Lippert’s attorneys of record, filed in opposition to Rosen's motion. It specifically appears from both Englander’s statement and Maizlish’s declaration that the continuance of the deposition was agreed on by Englander and Kurzrok on June 22 at the request of the witness. Other allegations of Maizlish's completely unredeeming declaration will be noted below.

The Discretion of the Trial Court

“A deposition is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine.” (Code Civ. Proc., §2004; People v. Hjelm, 224 Cal.App.2d 649 , 654, 655 [ 37 Cal.Rptr. 36 ].) A party to a pending action may take testimony by deposition upon oral examination for use as evidence as well as for the purpose of discovery. (Code Civ. Proc., § 2016, subd. (a).) At the trial a deposition may only be used “against any party who was present or represented at the taking of the deposition or who had due notice thereof.” (Code Civ. Proc.,

No case has been found in which an appellate court in this state has considered the provisions of section 2019, subdivision (g), Code of Civil Procedure. Detsch & Co. v. American Products Co., 141 F.2d 662 , 663, is apparently the only decision of an appellate court involving the imposition of sanctions under rule 30, subdivision (g) of the Federal Rules of Civil Procedure. In that case defendant’s attorney traveled from San Francisco to Los Angeles for the purpose of attending a properly noticed deposition and was not advised that the witness had been excused by the attorney giving the notice until after the time set for the taking of the deposition. The court affirmed an order of the trial court requiring plaintiff to pay defendant the reasonable expenses thereby incurred by its attorney, including an attorney’s fee. The court there noted that rule 30, subdivision (g), “relates to expenses incurred, whether paid or unpaid. ’ ’

The power of the trial court to impose sanctions against a party to a lawsuit in appropriate cases has long been recognized in this state. For example, section 473, Code of Civil Procedure, provides that the court may “in furtherance of justice, and on such terms as may be proper,” allow a party to amend his pleadings; in such a case, when a continuance of the trial is necessary because of the amendment, the court may “require, as a condition to the amendment, the payment to the adverse party of such costs as may be just.” In Williams v.

Similarly, “When an application is made to a court or referee to postpone a trial, the payment of costs occasioned by the postponement may be imposed, in the discretion of the court or referee, as a condition of granting the same.” (Code Civ. Proc., § 1024.) Here, too, the allowance is not limited to the items taxable as costs after the trial ■ the court may award any reasonable amount to compensate the other party for his expenses incurred in preparing for trial at the appointed time, including transportation and hotel bills of parties, attorneys and witnesses. (2 Witkin, Cal. Procedure (1954) Trial, § 26, p. 1754, and 1965 Supp., p. 613.)

The same rule prevails when a party, on a motion under section 473, Code of Civil Procedure, is granted relief “from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. ’ ’ The code provides that such motions may be granted “upon such terms as may be just.” Here again, the court may require the payment of costs otr attorney’s fees to the adverse party to compensate him for loss or expense which he may suffer by the granting of the motion. (3 Witkin, Cal. Procedure (1954) Attack on Judgment in Trial Court, § 63, p. 2114 and 1965 Supp. p. 809.)

Sections 2019, subdivisions (b) (1), (d) and (g), 2034, subdivisions (a) and (d), Code of Civil Procedure, grant power to the trial court to impose similar sanctions in relation to deposition and discovery proceedings in the exercise of its discretion. The nature of such sanctions is the same as those which may be imposed under sections 473 and 1024, Code of Civil Procedure, and serve the same purpose.

The power of the trial courts to impose sanctions under provisions of section 2034, subdivision (d) has been considered

In Lund v. Superior Court, 61 Cal.2d 698 [ 39 Cal.Rptr. 891 , 394 P.2d 707 ], the court said (p. 712) : “When the discovery statutes were adopted in 1957 (Stats. 1957, ch. 1904, p. 3322 et seq.) it was contemplated that the new procedures, many of which were to be accomplished without prior court order, would require enforcement by the court when recalcitrant attorneys or parties failed to comply. For that reason, section 2034 dealing with the refusal to make discovery and its consequences, was included. ’ ’

The propriety of imposing sanctions under section 2034, subdivision (d) was again before the court in Weinkauf v. Superior Court, 64 Cal.2d 662 , 664 [ 51 Cal.Rptr. 100 , 414 P.2d 36 ], In denying a writ of prohibition the court there sustained an order of the trial court requiring the attorney for a defendant who had failed to answer certain interrogatories to pay plaintiff $500 as expenses and attorney’s fees incurred in making the motion. The court held that the trial court had jurisdiction to make such an order by reason of the “mandate of the statute. ’ ’

In Weinkauf v. Superior Court, supra, the court reiterated the rule that, in such cases as this, the burden is on the petitioner to show that the trial court abused its discretion. We are satisfied that such a showing has been made by petitioner

There is nothing in the showing made by plaintiff in the court below in opposition to warrant the denial of petitioner’s motion. Plaintiff’s attorney, Maizlish, alleges in his declaration that at no time did anyone representing petitioner “indicate to me in any way that Mr. Rosen [petitioner’s attorney] would travel to New York for the taking of this deposition,” and that when Rosen arrived in New York he made no contact either with Englander or Kurzrok before he appeared in Englander’s office at the time noticed for the taking of the deposition. Apart from the fact that, until he arrived at Englander’s office, petitioner’s attorney did not know that Kurzrok had any connection with the matter, these statements by Maizlish are immaterial. Petitioner’s attorney was under no obligation to inform Maizlish. whether he was going to New York or not, or to contact Englander before the time set for the deposition. Having given notice of the taking of the deposition it was Maizlish’s duty to have the witness present at the time set for her deposition on the assumption that petitioner’s attorney would appear and avail himself of the right of cross-examination, or to give defendant timely notice that the deposition would not be taken as noticed, just as it was the right of petitioner’s attorney to rely on the notice of that deposition which had been served on him.

In its brief in this court the real party in interest suggests that there is no provision in the laws of this state for the issuance of a subpoena to compel the attendance of a nonresident witness for the taking of his deposition at the place of his residence. This, of course, is true. Counsel, however, overlook the fact that so far as material here, section 3102, New York Civil Procedure Law and Rules, is identical with section 2023 of the California Code of Civil Procedure. Under this provision, it would have been a simple matter to obtain a subpoena in New York for the attendance of the witness.

Maizlish also complains that petitioner’s attorney refused to stay over in New York for an additional four days so that the deposition could be taken on June 27, even though Englander and Kurzrok implored him to do so. Petitioner’s attorney was under no obligation to stay over for the deposition, and in the circumstances disclosed by the record, was not at fault in returning to California when he did.

In his points and authorities filed with the trial court, Maizlish argued on the authority of Hoge v. Lava Cap Gold Min.

There can be no doubt that the trial court had the power under section 2019, subdivision (g), Code of Civil Procedure to order the plaintiff whose attorney had given notice of the taking of the deposition to pay to defendant the reasonable expenses incurred by him and by his attorney in attending at the time and place set forth in the notice, including reasonable attorney’s fees. In the absence of any adequate rebuttal to the factual showing made by petitioner in support of his motion, “there was no disputed fact before the trial court. There was, therefore, no room for the respondent court to exercise any discretion. In Greyhound it was pointed out (at p. 383) that discretion is not exercised by simply granting or denying discovery, but must be predicated upon certain factors therein set forth. (See also Singer v. Superior Court, 54 Cal.2d 318 , 327 [ 5 Cal.Rptr. 697 , 353 P.2d 305 ].) None of those factors were present here. Hence, there was no room for the exercise of discretion.” (Beesley v. Superior Court, 58 Cal.2d 205 , 208 [ 23 Cal.Rptr. 390 , 373 P.2d 454 ].)

Although not required to do so, since they were not before the trial court (Gutierrez v. Superior Court, 243 Cal.App.2d 710 , 729-730 [ 52 Cal.Rptr. 592 ]), we have considered the affidavits of Harry Kurzrok and Isidore Englander filed with this court by the real party in interest. Except for the denial by both these gentlemen that Rosen’s attorney offered to stay over in New York if he were paid his expenses occasioned by the delay, there is nothing in these affidavits which materially changes the showing made by petitioner in the trial court. Englander says in his affidavit that it was his partner who spoke to Mr. Kurzrok on June 22, the day before the time set for the deposition, “and requested that Mrs. Fisher’s deposition be continued for a few days for important personal

In the case here the outright denial of petitioner’s motion constituted an abuse of the trial court’s discretion under the rules stated above. We cannot, however, direct the court to grant the motion in its entirety, since the amount which plaintiff should be ordered to pay to defendant rests in the discretion of the trial court.

The alternative writ is discharged. Let a peremptory writ issue commanding the respondent court to reset petitioner’s motion for the imposition of sanctions pursuant to section 2019, subdivision (g), Code of Civil Procedure, on notice to both parties, for hearing and determination before the action is tried, and to order plaintiff to pay defendant the reasonable expenses incurred by him and his attorney in attending at the time and place noticed by plaintiff for the taking of the deposition of Hannah Fisher, including reasonable attorney’s fees.

Wood, P. J., and Lillie, J., concurred.

The petition of the real party in interest for a hearing by the Supreme Court was denied October 26, 1966.