16 Cal.2d 260, 17298, Hays v. Superior Court

Docket Nº:17298
Citation:16 Cal.2d 260, 105 P.2d 975
Opinion Judge:[9] Spence
Party Name:Hays v. Superior Court
Attorney:[7] William C. Ring for Petitioner. [8] J. H. O'Connor, County Counsel, Douglas De Coster, Deputy County Counsel, Loyd Wright and Charles E. Millikan for Respondent.
Case Date:October 02, 1940
Court:Supreme Court of California
 
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Page 260

16 Cal.2d 260

105 P.2d 975

JACK HAYS, Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.

L. A. No. 17298.

Supreme Court of California

October 2, 1940

In Bank.

Page 261

COUNSEL

William C. Ring for Petitioner. J. H. O'Connor, County Counsel, Douglas De Coster, Deputy County Counsel, Loyd Wright and Charles E. Millikan for Respondent

OPINION

[105 P.2d 976] 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 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." 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 determination

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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., sec. 1049; San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30 [105 P.2d 977] [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 , Pollack v. Superior Court, 197 Cal. 389 , and Paddon v. Superior Court, 65 Cal.App. 34 , 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 P.2d 532], Rossbach v. Superior Court, 43 Cal.App. 729 , Kibele v. Superior Court, 17 Cal.App. 720 , and Lamphrey v. Superior Court, 8 Cal.App. 80 , petitions for writs of prohibition to prevent the trial courts from enforcing the right were denied. It is entirely clear that such cases 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

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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 P.2d 1283], and Bar Association v. Superior Court, 64 Cal.App. 590

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 P.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

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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 , that the taking of a deposition is one [105 P.2d 978] 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 determination 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...

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