Bauguess v. Paine
| Decision Date | 14 November 1977 |
| Citation | 142 Cal.Rptr. 29,75 Cal.App.3d 21 |
| Parties | Ira James BAUGUESS, Plaintiff, v. Webster PAINE et al., Defendants and Respondents, Maxim N. Bach, Appellant. Civ. 16290. |
| Court | California Court of Appeals Court of Appeals |
Larimer and Evans and Timothy J. Evans, Marysville, for plaintiff and appellant.
Price, Burness, Price & Davis and Robert L. Davis, Chico, for defendants and respondents.
The following question is posed on appeal. Does the trial court have inherent power, codified in the Code of Civil Procedure, to impose sanctions against an attorney who has caused a mistrial through his serious misconduct? The attorney, using devious means, had read the private notes of the jury, and had done so in contravention of the clearly expressed intent of the trial judge. The sanctions were ordered paid to the other party, innocent of wrongdoing, as partial compensation for losses caused by the mistrial. We conclude that the court may impose such sanctions.
In addition to the issue of sanctions, appellant raises two claimed errors of reversible proportions. First, the mistrial order which formed the basis for sanctions was improperly granted. Thus, the court abused its discretion. Second, the judge's bias and prejudice prevented a fair hearing. We disagree. The trial court did not err.
A jury trial in the case of Bauguess v. Paine commenced on August 16, 1976. Appellant appeared as attorney for the plaintiff. The jury was selected and the appellant began the presentation of the case for the plaintiff.
During the second day of trial plaintiff sought to introduce into evidence a diagram attached to a deposition which was to be read to the jury. Appellant sought to have copies of that exhibit distributed to each juror for the jurors' personal use while listening to the reading of the deposition. The original diagram was received into evidence and the extra copies for the jury's use were received as exhibits. The court allowed copies to be distributed to the jury. It orally instructed the jurors, while appellant was present, that they could make notes directly on the copies for their own purposes. The copies would be collected and redistributed to the jurors at the time of deliberations. The deposition was then read. The court followed the announced procedure.
Plaintiff then called a California Highway Patrol officer to testify. The officer had prepared a sketch of the accident; again appellant sought to have copies of the sketch distributed to the jury for their use. The sketch, marked exhibit 7, and the copies, marked exhibits 7A through 7M, were received into evidence without objection. The copies were distributed to the jury. Again, while counsel was present the trial judge informed the jury that they could take notes on the exhibits, and that the notes would be returned to them at the time of their deliberations. The trial continued.
On August 18, 1976, court reconvened outside the presence of the jury. The judge then advised the parties that the night before, as he was calling the criminal calendar, appellant had approached the clerk and asked to look at some of the exhibits. Appellant selected the exhibits that had been distributed to the jury for their use.
Appellant admitted looking at the exhibits 7A through 7M, and maintained that he had a right to do so since they were exhibits in the case. In fact, he argued that he had a duty to his client to read the jurors' notes. Appellant continued to maintain this position. The court noted that such conduct and the maintenance of such a contention might involve possible contempt charges. The judge declined appellant's invitation to read the jury notes, as did defense counsel. Defense counsel moved for a mistrial. After discussion the court granted the motion.
Defense counsel moved for sanctions against plaintiff's counsel. Attorney fees to his client were $350.00 per day. He asked that the requested sanctions of $700.00 be paid to defendant for the prior two days of trial. The loss, after all, had been caused by appellant's misconduct.
The matter was set for an August 20, 1976 hearing. Appellant appeared with counsel. Counsel argued that due to the possibility of contempt proceedings the hearing on sanctions should be postponed. Appellant submitted the matter without comment. Thereafter, the court imposed the sanctions, ordering appellant to pay $700.00 to the defendant for attorney fees.
Seven days later a hearing was held for consideration of possible contempt charges. The possibility of referral to the Bar Association also was to be discussed. Appellant made a verbal motion under Code of Civil Procedure section 170, subdivision (5) to disqualify the judge. The judge declined to disqualify himself noting that the motion was not timely, and stating that he was not prejudiced against appellant. The court found appellant in contempt for the jury notes incident. However, the court imposed no penalty. The court stated that it preferred to let appellant pay for the damage he had caused pursuant to the sanctions order.
Appellant filed a written motion under Code of Civil Procedure section 170, subdivision (5) on August 27, 1976. The court answered on September 3, 1976. On the same day an order was entered adjudging appellant guilty of contempt. The contempt order noted that sanctions were already ordered under the general powers of the court to control the proceedings before it. The order stated that if appellant paid the sanctions no further proceedings would be necessary. The order further recited appellant's full right to appeal the order of sanctions. Finally the order explained that if appellant failed to pay the sanctions, the question of penalties for direct contempt, and whether any indirect contempt occurred, would be referred to another judge for decision.
The notice of appeal and all briefs raise issues only as to the propriety of the sanctions order.
The order imposing sanctions is a final order, on a collateral matter, directing the payment of money. As such it is an appealable order. (See Wisniewski v. Clary (1975) 46 Cal.App.3d 499, 502, 120 Cal.Rptr. 176.) We consider only the award of sanctions. We indicate no opinion as to the contempt order or proceedings.
In reviewing the order awarding sanctions it is necessary for us to consider first the propriety of the mistrial order.
Appellant secured and read the notes kept by the jury during the trial. He did so without notice to opposing counsel and in direct violation of court instructions on the matter. He contends that it was his right and duty as an attorney trying the case to read the notes.
During a jury trial no party is permitted to communicate with or receive communications from the jury on the subject of the trial. (See Code Civ.Proc., §§ 611, 613.) 1 Rules of Professional Conduct of the State Bar of California, rule 7-106, subdivision (B)(1) provides: "During the trial of a case: [a] member of the State Bar connected therewith shall not communicate directly or indirectly with any member of the jury." Attempts to influence or communicate with the jury during a trial are strictly forbidden and when observed have been promptly punished. (In re Jarvis (1922) 57 Cal.App. 533, 538, 207 P. 494; Ex parte Creely (1908) 8 Cal.App. 713, 97 P. 766.) Such measures are necessary to safeguard the impartiality that is essential to the judicial process. (See ABA Code of Prof. Responsibility, EC 7-29.)
While appellant's conduct in reading the private notes of the jurors did not involve a two-way conversation with the jury members such action could only have been intended to result in appellant's acquisition of knowledge of the jurors' private thoughts concerning the evidence presented. This knowledge would enable appellant to bolster his case by tailoring the further presentation of his case to answer questions revealed in the notes. The strict prohibitions against communicating with the jury and the requirement of jury privacy make manifest the impropriety of appellant's conduct.
In assessing the propriety of appellant's conduct in this case we do not rely solely upon that which an attorney should understand. Rather, we rely also on appellant's breach of the court's reasonable procedures. When the trial judge decided that he would allow the copies of the exhibits to be distributed to the jury he stated "they will be instructed they can make notes on it or mark on it themselves for their own purposes, thereafter they'll be collected and again at the time of the deliberations they will be distributed to the jurors." The procedure was followed. Similar statements were made in reference to the copies of exhibit 7. In collecting the exhibits from the jury, the trial judge stated to the jurors: These statements of ground rules by the trial judge were also admonitions. They clearly establish that it was the court's intention that the exhibits and the notes thereon would be private, for the jury alone, and not for anyone else's use or observation. Appellant does not argue that he did not so understand.
Appellant maintains that as exhibits he was absolutely entitled to look at the copies of the diagram and sketch, including the writing of the jurors, and that the trial judge could not prevent him from doing so.
A trial court has the inherent power to...
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