Hays v. Superior Court , 16 Cal. 2d 260 ( 1940 )

SPENCE, J., pro tem.

Petitioner seeks a peremptory writ of mandate to compel the respondent court to order Gertrude Temple, defendant in the case of Hays v. Temple et al., being action numbered 407-515 in the files of respondent court, to give her deposition.

Said action was commenced on October 7, 1936. Defendant’s motion to dismiss said action, which motion was made upon the ground of the failure to bring the action to trial within two years, was granted on March 22, 1939, and judgment of dismissal was entered on March 31, 1939. Petitioner, as plaintiff in that action, appealed from said judgment and the appeal is still pending.

Shortly after the filing of the motion to dismiss said action, petitioner herein sought and obtained an order for a subpoena to issue requiring defendant Gertrude Temple to appear before a notary public for the taking of her deposition. When said defendant appeared before the notary public on April 8, 1939, she refused to be sworn or to testify upon the ground that the action had been dismissed. She was then cited to appear before the respondent court to show cause why she should not be ordered to give her deposition. Upon the hearing of the order to show cause, the respondent court ruled that, ‘ ‘ The proposed order is refused because the ease 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.” It will be noted that the respondent court did not refuse unreservedly to compel the witness to give her deposition but only declared “that the taking of such deposition should be deferred until the deter-initiation of said appeal”. Following said ruling by the respondent court, petitioner commenced this proceeding.

Petitioner contends that a party has an " absolute right” to take the deposition of an adverse party “at any time after the service of summons or appearance of the defendant” (Code Civ. Proc., sec. 2021); that such “absolute right” continues through the entire time that the action is pending (Code Civ. Proc., see. 1049; San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30 [99 Pac. 359, 17 Ann. Cas. 933]); and that the trial court has no discretion whatever in controlling the exercise of such right. In clarifying his position in his petition for rehearing herein he states, “This presents the question of whether or not petitioner had the immediate, absolute right to the deposition order, the reverse aspect of which is,-—was the trial court empowered to impose such conditional delay?”

Our review of the authorities cited by the parties leads us to the conclusion that the contentions of petitioner are too broad and that they therefore may not be sustained. A careful reading of the cited cases shows that many of them dealt solely with the question of the jurisdiction of the trial court to enforce the right to take the deposition of a witness. In such cases as Burns v. Superior Court, 140 Cal. 1 [73 Pac. 597], Pollack v. Superior Court, 197 Cal. 389 [240 Pac. 1006], and Paddon v. Superior Court, 65 Cal. App. 34 [223 Pac. 91], the orders of the trial courts enforcing the right were affirmed in proceedings in certiorari while in Most v. Superior Court, 25 Cal. App. (2d) 394 [77 Pac. (2d) 532], Rossbach v. Superior Court, 43 Cal. App. 729 [185 Pac. 879], Kibele v. Superior Court, 17 Cal. App. 720 [121 Pac. 412], and Lamphrey v. Superior Court, 8 Cal. App. 80 [96 Pac. 389], petitions for writs of prohibition to prevent the trial courts from enforcing the right were denied. It is entirely clear that such eases are not in point for in each of said cases the trial court had acted or was threatening to act in the enforcement of the right and its jurisdiction to do so was challenged in proceedings in certiorari or prohibition. This is a proceeding in mandamus seeking to compel the trial court to order the witness to give her deposition immediately and the precise question here is whether the trial court, in the exercise of its admitted jurisdiction, had the power to exercise a reasonable control over the proceedings. Stated in another way, the question is whether the trial court could exercise its discretion and defer the taking of the deposition, under the circumstances presented, until after the appeal had been determined. Two cases which are closely in point on this precise question are Patrick Farms, Inc., v. Superior Court, 13 Cal. App. (2d) 424 [56 Pac. (2d) 1283], and Bar Association v. Superior Court, 64 Cal. App. 590 [222 Pac. 185].

In Patrick Farms, Inc., v. Superior Court, supra, the trial court determined that, under the circumstances there presented, the motion for the issuance of a commission to take a deposition of a certain witness at a distant point should not be granted until the question of plaintiff’s right to an accounting had been first determined. A petition for a writ of mandate to compel the respondent court to issue the commission was denied. It was there said at page 425, “While ordinarily a party is entitled to the issuance of a commission as a matter of right at any time after the service of summons or the appearance of the defendant (Code Civ. Proc., sec. 2020; San Francisco Gas & Electric Co. v. Superior Court, supra), the exercise of that right is subject to a reasonable control by the trial court. (Levin v. Superior Court, 139 Cal. App. 693 [34 Pac. (2d) 832]; Bar Association v. Superior Court, supra.) In other words, we believe that the authorities last cited clearly indicate that the trial court is not compelled under all circumstances to order the issuance of the commission at any time that a request is made therefor after the service of summons or appearance of the defendant, and that the trial court may exercise its discretion and refuse the issuance thereof under certain circumstances. Therefore the action of a trial court in refusing to issue a commission should not be disturbed in the absence of a showing of an abuse of discretion in the particular case. ’ ’

In Bar Association v. Superior Court, supra, the trial court continued the taking of a deposition upon a showing of the illness of a party. Petitioner sought annulment of the order of continuance claiming “the absolute right to have said deposition taken at the time and place fixed in its notice of motion to take the same, and that there is no authority vested in the respondent to vary said procedure by extending the time or fixing a different date on which said deposition should be taken’’. It was there admitted by all parties that the precise question had not been previously presented to the appellate courts of this state. The court affirmed the order of the trial court continuing the deposition holding, upon the authority of Burns v. Superior Court, 140 Cal. 1 [73 Pac. 597], that the taking of a deposition is one of the proceedings of the court, subject to the control of the court in the exercise of a “legal discretion” in the same manner as other proceedings of the court. It further held that although the party had no absolute right to be present at the taking of the deposition, the trial court did not abuse its discretion in ordering the continuance to permit such party’s presence.

While the writ of mandate was issued in Levin v. Superior Court, supra, to compel the issuance of a commission, the court there recognized, at page 695, the right of the trial court to exercise its discretion and to refuse to order the issuance of a commission under certain circumstances. It was there said, “Although the code provisions include all of the time from the service of summons until final detem mination of a suit, and in general the issuance of the commission is a matter of right, as applied to a particular case this must be taken with such qualification as the facts of such case may demand.”

There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power necessarily exists as one of the inherent powers of the court and such power should be exercised by the courts in order to insure the orderly administration of justice. We find nothing in the code sections relating to the taking of depositions which can be construed as an attempt to withdraw that power with respect to deposition proceedings. It is true that the language of section 2021 of the Code of Civil Procedure permits the taking of a deposition “at any time” and that the permissive language of said section may be said to confer a right upon the litigants. But such right is not an absoluté right but is a right which, like all rights relating to procedural matters, is qualified by the existence of the power of the court to exercise a reasonable control over the exercise of such right. To deny the existence of such power is to deny the power of the trial court to order the continuance of a deposition in case of the illness of the witness or in case of the illness or the death of a party or his counsel. We do not believe that it. would be seriously contended that the power to order a continuance does not exist under such circumstances ; and if the power does exist under such eir.cumstances, it may exist under other circumstances for its existence in the suggested cases must necessarily be based upon the power of the court to exercise a reasonable control over the proceedings. If, in any case, the trial court acts unreasonably or in such manner as to deny the right rather than to exercise merely a reasonable control over the exercise of the right, then the trial court would be acting beyond its powers and its actions would be controlled by mandamus or other appropriate remedy.

We believe that the authorities relied upon by petitioner are all distinguishable. We have pointed out above that those authorities dealing with purely jurisdictional questions in certiorari and prohibition proceedings and affirming the jurisdiction and power of the trial court to enforce the deposition right are not in point here. The main authority relied upon by petitioner, involving a mandamus proceeding is San Francisco Gas & Electric Co. v. Superior Court, supra. It is entirely clear from a reading of the decision, and particularly pages 32 and 33 thereof, that the sole ground upon which the respondent court there denied the application for the issuance of the commission was that it was of the opinion that it had no jurisdiction to order the issuance thereof while the cause was on appeal. It was not suggested by the respondent court there that it had denied the application in the exercise of its discretion for the obvious reason that, assuming that jurisdiction existed, it would have constituted a clear abuse of discretion to deny the issuance of the application under the circumstances. The witness whose deposition was there sought was the only witness who could prove petitioner’s defense upon a possible retrial and said witness was under sentence of death and was to be executed within a short time. Under such circumstances, the refusal to issue the commission constituted a complete denial of the right to take the deposition of said witness and therefore constituted a clear abuse of discretion. The passing reference to the absence of discretion in the trial court, found on page 39 of the opinion, was made only with respect to the propriety of the writ of mandate as a remedy. The court there no doubt had in mind the familiar rule that the writ of mandate will not issue ordinarily to control the exercise of discretion by one in whom the law reposes such discretion (16 Cal. Jur., p. 809), but that rule is qualified in that, “An abuse of discretion, however, is not the exercise of discretion, but is action beyond the limits of discretion, and it is settled that the writ will issue to correct such abuse if the facts otherwise justify its issuance.” (16 Cal. Jur., pp. 810 and 811.) The law on the availability of the writ of mandate as a remedy was clarified shortly after the decision in the case under discussion. In Matter of Ford, 160 Cal. 334 [116 Pac. 757, Ann. Cas. 1912D, 1267, 35 L. R. A. (N. S.) 882], this court expressly disapproved its former ruling in Strong v. Grant, 99 Cal. 100 [33 Pac. 733], and declared that the writ of mandate would issue to correct an abuse of discretion. (See, also, Inglin v. Hoppin, 156 Cal. 483, 491 [105 Pac. 582].) We are therefore of the view that said reference to the absence of discretion in San Francisco Gas & Elec. Co. v. Superior Court, supra, was not necessary to the decision as the court there might well have stated that the remedy by writ of mandate was available as the facts showed a clear abuse of discretion. The same may be said regarding any reference to the absence of discretion found in the other authorities relied upon by petitioner.

Other cases, involving mandamus proceedings and relied upon by petitioner, are Crocker v. Conrey, 140 Cal. 213 [73 Pac. 1006], Scott v. Shields, 8 Cal. App. 12 [96 Pac. 385], Wissman v. Cabaniss, 34 Cal. App. 487 [168 Pac. 150], and Austin v. Turrentine, 30 Cal. App. (2d) 750 [87 Pac. (2d) 72, 88 Pac. (2d) 178]. These cases are likewise distinguishable. In Crocker v. Conrey, supra, it appears that respondent refused to act upon the “sole ground” of lack of “power or jurisdiction to compel the defendant to answer”. (See page 214.) In Scott v. Shields, supra, the respondent refused to act on the “sole ground” that he “had no jurisdiction t'o make an order requiring the said witness to complete his deposition”. (See pp. 13 and 14.) In Wissman v. Cabaniss, supra, the respondent refused to act upon the erroneous assumption that all questions concerning the property rights of the parties had been determined in a former action. In Austin v. Turrentine, supra, the witness had been examined at length on various matters on the taking of his deposition but he refused to produce certain books and records. The trial court refused to order their production on the ground “that it did not have jurisdiction so to do”. (See p. 759.) In the mandamus proceeding, the court held that the trial court had jurisdiction and that it should have required the production of such books and records. In each of these cases last mentioned, there was an unqualified and unjustified refusal to act upon the part of the trial court and therefore an abuse of discretion. None of said eases involved an order of the trial court which merely temporarily delayed the exercise of thé right to take the deposition. In other words, the trial court’s action in each of said eases amounted to a denial of the right rather than a reasonable control over the exercise of the right.

Prom what has been said, we conclude that both reason and authority support the view that the trial court here had the power to exercise a reasonable control over the deposition proceedings. The question remains as to whether the trial court merely exercised such reasonable control or whether it acted unreasonably and in such manner as to constitute an abuse of discretion in ordering that the taking of the deposition should be deferred until after the appeal from the judgment of dismissal had been determined.

The petition herein shows that petitioner claims the right to take the deposition of Gertrude Temple upon the ground that she is a defendant in the action and is “a material witness”. This showing is ample to establish the right, qualified as above indicated, but there are other factors to be considered in determining whether the trial court merely exercised a reasonable control over the exercise of the right. It appears that the action had been pending over two and one-half years before petitioner sought the aid of the court for the purpose of obtaining the deposition of said witness; that he did not seek the issuance of a subpoena until after the service of the notice of motion to dismiss said action; and that the action had been dismissed at the time that the witness appeared before the notary. There is no showing here that said witness was the only witness who could testify to a material fact or that said witness was aged, infirm or about to leave the jurisdiction. In short, there is no showing made to this court, nor does it appear that there was any showing made to the trial court, that there is any likelihood that a reasonable delay in the taking of the deposition will result in denying to petitioner the right to take the deposition of the witness prior to any trial that may be had in the event of a reversal of the judgment of dismissal. Under these circumstances we believe that the trial court merely exercised a reasonable control over the proceedings in refusing to compel the giving of the deposition forthwith and that it did not act unreasonably or in such manner as to constitute an abuse of its discretion.

The petition for a peremptory writ of mandate is therefore denied.

Shenk, J., Houser, J., McComb, J., pro tem., and Curtis, J., concurred.