Bauguess v. Paine

• Decision Date: 16 November 1978
• Docket Number: S.F. 23764
• Parties: , 586 P.2d 942 Ira James BAUGUESS, Plaintiff, v. Webster PAINE et al., Movants and Respondents, Maxim N. Bach, Objector and Appellant.
• Court: California Supreme Court

Page 461

150 Cal.Rptr. 461

22 Cal.3d 626, 586 P.2d 942

Ira James BAUGUESS, Plaintiff, v. Webster PAINE et al., Movants and Respondents, Maxim N. Bach, Objector and Appellant.

S.F. 23764.

Supreme Court of California.

Nov. 16, 1978.

As Modified Nov. 27, 1978.

Maxim B. Bach, in pro. per.

Bach & Bach, Chico, and Timothy J. Evans, Marysville, for objector and appellant.

Marshall W. Krause, Krause, Baskin & Shell, Larkspur, Ephriam Margolin, Herbert M. Rosenthal and Truitt A. Richey, Jr., San Francisco, as amici curiae for objector and appellant.

Price, Burness, Price & Davis and Robert L. Davis, Chico, for movants and respondents.

BIRD, Chief Justice.

Appellant, plaintiff's attorney in a personal injury suit, was ordered by the trial court to pay respondents $700 in attorney's fees after a mistrial was declared in that action. This court must decide whether the trial court exceeded its authority in issuing that order.

I

Appellant, Maxim N. Bach, represented the plaintiff in the personal injury suit of Bauguess v. Paine. The trial proceeded uneventfully until the second day, when appellant proposed reading a deposition to the jury. Appellant requested that a diagram, attached to the deposition, be admitted into evidence. Extra copies of the diagram had been made to pass among the jurors for their use in following the testimony. This procedure was approved by the court and the clerk was told to label the copies "6A through M." When appellant requested that "6 go into evidence," the court replied: "6 is in evidence as are 6A through M."

Before the deposition was read, copies of the diagram were passed out to the jurors with the court's explanation: "Ladies and Gentlemen attached to the back of the deposition is a diagram. The diagram has been received in evidence. . . . These are Xerox copies for your use in following the deposition. They are numbered exhibits 6A through M. So you each have a copy. You are free to write on those documents, take notes. At the conclusion of the reading of this deposition those exhibits will be picked up by the bailiff, deposited with the clerk. At the time the case is submitted to you you will have those available in the jury room during your deliberations. So if you want to mark on them, fine, but take a look. You should have Exhibit 6A through M. A should be in the hands of Juror Number 1. And M should be in the hands of the alternate. Keep track of your own exhibit. You may proceed." These copies of the diagram were collected by the bailiff after the deposition had been read.

This same procedure was followed regarding a sketch prepared by the next witness, a highway patrolman. The prepared copies of the sketch were passed among the jury and the court admitted "7A through M In evidence, there being no objection." Again, the court instructed the jury, "you're free to mark on These exhibits if you want." (Emphasis added.) ¹

These exhibits were not collected from the jury at the close of the patrolman's testimony. After another deposition was read, the court, observing that jurors had been taking notes on the diagrams, asked if any juror wanted note paper for the remainder of the trial. The court stated: "But let me advise you that it is all right for you to take notes, but these are your personal notes and they're not to be shared with anyone until the case is finally submitted to you, and then you may refer to them in your deliberations, but until such time they're your own personal notes, not to be shown to anyone, not to be shown to any of your fellow jurors, your spouse or your neighbors, anybody. What we do in long trials is we often pass out spiral notebooks with the jurors' seat number on them and then collect them each night and give them back each morning. On short trials we don't go through that, but you're entitled to take your own notes and keep them. But keep in mind you are to keep your own counsel and you are not to share them with anyone."

The court then collected the exhibits of the highway patrolman's sketch, on which the jurors had taken notes. Note paper was supplied to the jury. Although the jurors were allowed by the court to take their notes home, they were admonished to keep the notes confidential.

After the trial had recessed for the evening and while the judge was engaged with other matters, appellant asked permission of the clerk to examine exhibit 7. He took the exhibit, looked at it briefly, and returned it.

Before trial commenced the next day, the judge remarked that his clerk had informed him that appellant had looked at certain exhibits on which the jurors had taken notes. Appellant responded that he was entitled to do so since the exhibits had been admitted into evidence. The court disagreed, reprimanded appellant, and raised the possibility of a mistrial. Appellant steadfastly maintained he had done nothing improper, that there had been no prejudice to respondents' case and that the error, if any, could be cured if opposing counsel were to view the notes as well. Defense counsel refused and then moved for a mistrial.

An acrimonious discussion ensued between the court and appellant. The court was particularly displeased with appellant's position that once an item had been admitted into evidence, counsel had not only a right but a duty to examine it. Construing this position as an attack on its powers, the court informed appellant that his position constituted contempt of court. ² When appellant failed to change his position, the court granted respondents' motion for a mistrial.

After the jury was discharged, defense counsel requested attorney's fees for the two days of the aborted trial. The court again expressed displeasure at appellant's position, indicated contempt or other disciplinary proceedings might be in order, and continued the matter for two days.

At the hearing on respondents' motion for attorney's fees, appellant requested that the contempt charges be heard first, since he feared anything said in opposition to the motion for attorney's fees might be used against him in the contempt proceedings. Appellant's counsel further requested that the hearing be postponed until the reporter's transcript of the trial was prepared. The court denied both requests. On the advice of counsel, appellant did not argue the motion for attorney's fees but renewed his standing request that the contempt proceedings be heard first.

The court declared the motion for attorney's fees submitted without opposition because appellant remained mute. Thereafter, the court ordered appellant to pay respondent $700 for attorney's fees as a sanction. The court then reiterated its displeasure, concluding: "(What) would make me happier than anything in the world is to have you just maybe eat a little humble pie and admit that you made a mistake in judgment and it's not going to happen again. That's all I'm after."

When the hearing resumed the following week, the court again expressed its displeasure at appellant's conduct and formally found him in direct contempt for "violat(ing) the court's order" regarding the diagrams on which the jurors had taken notes. However, the court declined to impose a penalty for the contempt at that time, noting that appellant had already been assessed $700 in attorney's fees for the mistrial. This award was characterized by the court as analogous to probation and restitution in a criminal case and as an alternative to a penalty for contempt. "Now if Mr. Bach is not willing to accept that as an alternative to the contempt then the court is certainly prepared to impose sanctions for contempt as well." This appeal was taken from the order directing appellant to pay attorney's fees in the amount of $700.

II

The sole issue before this court is whether the award of attorney's fees as a sanction for appellant's alleged misconduct was a proper exercise of the trial court's authority. ³

It has been the traditional practice in this country for each litigant to bear his or her own attorney's fees. (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620, 30 Cal.Rptr. 821, 381 P.2d 645.) Awards of attorney's fees by courts are the exception rather than the rule. Generally, a court may properly award attorney's fees only pursuant to an agreement of the parties or statutory authority. This principle is codified in Code of Civil Procedure section 1021: "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . . ." In the present case, there was no agreement between the parties that would support the trial court's award.

The Legislature has enacted several statutes authorizing the award of attorney's fees to advance certain public policies. (See generally 4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, §§ 125-128, pp. 3275- 3277.) However, there is no statute which authorizes the award of attorney's fees in personal injury cases. (LeFave v. Dimond (1956) 46 Cal.2d 868, 870, 299 P.2d 858.) Some statutes do authorize the use of fee awards as sanctions for conduct which produces unnecessary or unwarranted litigation. (See, e. g., Code Civ.Proc., § 2034 (authorizing the award of attorney's fees as a sanction for the improper refusal to permit discovery).) Usually these awards are assessed against the party or witness, but under certain circumstances both trial and appellate courts are authorized to order Counsel to pay the opposing party's attorney's fees as a sanction for counsel's improper conduct. ⁴ However, no statute provides for fee awards as sanctions following a Mistrial either against a counsel or a party. Respondent concedes this point, but contends that the court had the inherent power to make such an award.

Courts have drawn on two distinct sources of power to justify the award of attorney's fees: equitable power derived from the historic power of equity cour...