Brown v. Superior Court

Decision Date02 May 1986
Docket NumberNo. B017356,B017356
Citation180 Cal.App.3d 701,226 Cal.Rptr. 10
CourtCalifornia Court of Appeals Court of Appeals
PartiesDustin W. BROWN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, William BOORSTIN, et al., Real Parties in Interest.

Gerald Mason, San Luis Obispo, for petitioner.

No appearance for respondent.

W. Merrill Davidson, Encino, for real parties in interest.

WOODS, Presiding Justice.

The issue in this mandate proceeding is whether a civil defendant may waive his right to assert the Fifth Amendment privilege against self-incrimination by failing to raise it as an objection to interrogatories within the 30-day period prescribed by section 2030 of the Code of Civil Procedure. As this opinion reflects, we have concluded that defendants waived their privilege.

Petitioner Dustin Brown (plaintiff) is suing real parties in interest William Boorstin, Henry Steven Boorstin, Henry Boorstin, Sr., and Donna Boorstin (defendants) for assault and battery and for conspiracy to murder him. 1 At the time the petition was filed, defendant William Boorstin was concurrently facing criminal charges of attempted murder arising from the same incident.

On January 11, 1985, plaintiff served written interrogatories on defendants. While many of the questions were innocuous, others potentially required self-incrimination on such issues as the defendants' whereabouts, activities, vehicle ownership, and weapon ownership on the date of the incident.

Having received no response to the interrogatories, plaintiff moved to compel answers. The motion was argued before and granted by Judge Robert B. Lopez on April 19, 1985. The court's order states: "Interrogatories shall be answered within 30 days without objection." Sanctions of $600 were awarded against defendants.

Defendants ignored the April 19 order. Plaintiff thereupon moved that defendants' answer be stricken and a default judgment entered against them, or alternatively, that the matters embraced by the discovery order be taken as established. Defendants filed no opposition. On July 19, 1985, Judge Laurence Rittenband granted the motion "unless the answers are filed within 10 days of notice."

In response, defendants served written objections to the interrogatories, asserting their Fifth Amendment privilege under the United States Constitution as to all questions. The objections were served over six months after the interrogatories had been filed. The proof of service indicates the objections were mailed on July 29, although the postmark on the envelope shows a date of July 30.

Plaintiff thereupon made a formal motion for default for noncompliance with the July 19 order. 2 Defendants opposed the motion on the ground that, assuming they were one day late with their response to interrogatories, default was too great a sanction.

On October 16, 1985, the trial court denied plaintiff's motion without stating any reason for the denial. 3 Plaintiff petitioned this court for a writ of mandate, belatedly filing a verification. We issued the alternative writ.

I

An initial issue is mootness.

Defendants point out in their return that, subsequent to our issuance of the writ, defendant William Boorstin was brought to trial and acquitted of attempting to murder plaintiff. They state that during the criminal trial, Donna and Henry Boorstin were granted immunity to testify, and Steven Boorstin and William Boorstin testified without immunity. Their counsel asked us to discharge the writ, stating: "There no longer appears to be any reason for claiming the privilege, and unlimited discovery can probably continue."

We issued an order on March 20, 1986, asking both sides to respond within five days to the question of whether the writ was moot.

Plaintiff promptly responded that the interrogatories have still not been answered and the case is not moot. Continuing their pattern of disregarding court orders, defendants failed to respond to our March 20 order. We have an inadequate record upon which to base a finding of mootness.

II

Another preliminary question is whether the July 19 order required an express finding that defendants' failure to answer the interrogatories was willful. No such express finding appears in the order. On the other hand, plaintiff's attorney has stated in a declaration filed with the petition that Judge Rittenband orally indicated at the July 19 hearing that he was making a finding of willfulness. Defendants have objected to counsel's representation as hearsay, and claim no such finding was made.

The issue requires review of the pertinent statutes.

Code of Civil Procedure section 2030, subdivision (a) provides in pertinent part that "the party upon whom the interrogatories have been served shall serve the answers on the party submitting the interrogatories within 30 days after the service of the interrogatories, ... Such answers shall respond to the written interrogatories; or, if any interrogatory be deemed objectionable, the objections thereto may be stated by the party addressed in lieu of response. If the party who has submitted the interrogatories deems that further response is required, he may move the court for an order requiring further response."

Section 2034 details the consequences for a refusal to answer. Subdivision (a) of section 2034, like section 2030, subdivision (a), authorizes the proponent of the interrogatories to move for an order compelling an answer. Subdivision (b) provides a list of sanctions, including rendering of a judgment by default, for any party who "refuses to obey an order made under subdivision (a), ..." Subdivision (d) contains a list of sanctions, again including entry of a judgment by default, against any party who "willfully fails to serve answers to interrogatories submitted under Section 2030, ..."

Thus, both subdivisions (b) and (d) are potentially available where a party has failed to answer interrogatories. (13 Grossman and Van Alstyne, Cal.Practice, Discovery Practice (1972) Motion to Compel Answer, § 540, p. 585 and fn. 38.) The difference is that the sanctions in subdivision (b) apply after a court order has previously been obtained under subdivision (a) for a failure to make discovery. Subdivision (d) requires no such court order, but does expressly require that the failure to serve answers be willful. (1 Hogan, Modern Cal.Discovery (3d ed. 1981) Interrogatories to a Party, § 5.16, p. 303.)

"Before any sanctions may be imposed under section 2034, subdivision (d), there must be an express finding that there has been a willful failure to the party or the attorney to serve the required answers. [Citations.]" (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787, 149 Cal.Rptr. 499.) Conversely, "subdivision (b)(2) of that section does not expressly require findings. Nevertheless, findings are customarily made when sanctions are imposed following a motion to compel, [citation], and the better rule appears to be that when the court imposes the ultimate sanction of dismissal, the court should state its reasons so that the order can be subject to meaningful review. [Citation.]" (Id., at p. 797, 149 Cal.Rptr. 499.)

As plaintiff's motion for sanctions, in the case before us, was made under subdivision (b), based on Deyo, no express finding of willfulness was required. On the other hand, a penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith. (Societe Internationale v. Rogers (1958) 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255.) There was absolutely no showing here that defendants were unable to comply with discovery. They simply failed to answer or object within the statutory period, and offered no opposition to plaintiff's motion for sanctions under section 2034, subdivision (b). In the circumstances, there is no merit to defendants' complaint that no formal finding of willfulness was made.

We therefore consider the merits of the issue presented by the petition.

III

The Fifth Amendment of the United States Constitution includes a provision that "[n]o person ... shall be compelled in any criminal case to be a witness against himself, ..." 4 Although the specific reference is to criminal cases, the Fifth Amendment protection "has been broadly extended to a point where now it is available even to a person appearing only as a witness in any kind of proceeding where testimony can be compelled." (Gonzales v. Superior Court (1980) 117 Cal.App.3d 57, 62, 178 Cal.Rptr. 358; italics in original.)

The Fifth Amendment is codified in Evidence Code section 940, which provides: "To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him."

There is no question that the privilege against self-incrimination may be asserted by civil defendants who face possible criminal prosecution based on the same facts as the civil action. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688-689, 208 Cal.Rptr. 743.) "All matters which are privileged against disclosure upon the trial under the law of this state are privileged against disclosure through any discovery procedure." (Code Civ.Proc., § 2016, subd. (b).) The issue here is whether the right to assert the privilege is waived when no such objection is raised within the 30-day period prescribed in Code of Civil Procedure section 2030.

The only California case touching upon this issue is Zonver v. Superior Court (1969) 270 Cal.App.2d 613, 76 Cal.Rptr. 10. Zonver is a divorce case in which the husband objected on Fifth Amendment grounds to some of the wife's interrogatories regarding his sexual liaison with his bookkeeper. Wife countered that the husband had waived the privilege by filing his objections a few days late. However, unlike the case at...

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