Carlson v. Superior Court of Los Angeles County

• Decision Date: 03 August 1961
• Citation: 364 P.2d 308,15 Cal.Rptr. 132,56 Cal.2d 431
• Court: California Supreme Court
• Parties: , 364 P.2d 308 Dolores C. CARLSON, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Carroll C. Carlson, Real Party in Interest. L. A. 26111.

Page 132

15 Cal.Rptr. 132

56 Cal.2d 431, 364 P.2d 308

Dolores C. CARLSON, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Carroll C. Carlson, Real Party in Interest.

L. A. 26111.

Supreme Court of California, In Bank.

Aug. 3, 1961.

Rehearing Denied Aug. 30, 1961.

Brown & Altshuler and Leo Altshuler, Beverly Hills, for petitioner.

No appearance for respondent.

Edward M. Raskin, Los Angeles, for real party in interest.

PETERS, Justice.

Petitioner seeks a writ of mandate to require the superior court to set aside its order prohibiting her from taking certain depositions.

In May, 1960, petitioner, as defendant and cross-complainant, was granted an interlocutory judgment of divorce against Carroll C. Carlson, the real party in interest. Most of the provisions of that judgment were in accord with stipulations entered into in open court. On June 8, 1960, the parties signed a document (dated June 6th) entitled 'Stipulation and Order for Modification of Interlocutory Judgment of Divorce,' by the terms of which it was agreed that certain real property previously awarded to the husband should be awarded to the wife, and that thereafter the wife should pay both her own and the husband's attorney fees in the event that she should bring any future 'action for the purpose of increasing alimony, or for any purpose against the Plaintiff * * *' other than for increased child support. At least one copy of the document was also signed by the attorney for each party, but before the same could be presented to the court for approval and entry of order, the husband repudiated the stipulation, claiming that it had never been consummated or delivered, and further contending that if deemed to have been executed and delivered, it had been rescinded on the ground that it was procured by fraud. Petitioner, being unable to obtain the intended modification by stipulation, filed a motion for new trial on the ground of newly discovered evidence (urging the stipulation to be such evidence). The trial court denied the motion upon the ground that the stipulation, even if valid, was not in existence on the date of the interlocutory judgment, and hence did not constitute newly discovered evidence. Thereupon petitioner filed a motion to modify the judgment in accordance with the terms of the alleged stipulation, thus creating an issue as to its validity. In preparation for the presentation of that motion petitioner took the required steps to take the depositions of the husband and of his previous attorney (the latter having been substituted out of the case subsequent to the date of repudiation of the alleged stipulation). The notice of taking depositions stated that the scope of examination of the witnesses would be 'limited to the issues presented in * * * (the) pending motions for modification * * *', and further that '(s)ince it is the present contemplation of Mrs. Carlson to bring on a further motion for modification of the alimony and child support order based upon a change of circumstances since the entry of the Interlocutory Judgment of Divorce, the scope of the examination as to witness Dr. Carlson will likewise include questions directed as to that potential as well. No other matters will be inquired into at these depositions * * *.'

There is no claim that the steps taken by petitioner did not fully satisfy the provisions of subdivision (a)(1) of section 2019 of the Code of Civil Procedure regarding the noticing and taking of depositions, or that a motion to modify may not be predicated upon a valid stipulation, or that the matters sought to be proved or discovered are not relevant to the issues, or that the contemplated witnesses are not proper persons to be examined as to the issues involved, or that any question of privilege is involved. However, the husband (Dr. Carlson) filed a notice of motion seeking, in the alternative: (1) an order forbidding the taking of the depositions, (2) an order requiring such depositions to be taken on written interrogatories, (3) an order forbidding examination as to those matters covered by affidavits or counter-affidavits previously submitted in connection with the motion for new trial and other similar motions already heard and determined by the court, and (4) an order limiting the scope of the examination to the facts relating to defendant's (petitioner's) pending motion to modify (i. e., excluding facts relating to any potential motion to increase alimony and child support). The only grounds urged in support of this motion to forbid or limit the depositions were: (1) that extensive depositions were taken in the principal action prior to the trial thereof, (2) that depositions were unnecessary because all of the facts relating to the validity of the alleged stipulation (upon which modification was sought) were set forth in the affidavits and declarations of the respective parties filed in connection with petitioner's previous motions, and (3) that the depositions were sought for the sole purpose of harassing, embarrassing and oppressing the husband. Each of the parties again filed declarations in support of their respective contentions. These declarations, together with those previously filed, indicated factual issues as to whether the alleged stipulation of June 8th had been in fact executed and delivered, and if so, whether it had been procured by fraud, and if so, whether it had been rescinded. The husband's declaration also contained his bare allegation that the purpose of the attempted depositions was harassment, embarrassment and oppression.

After hearing the husband's motions, respondent court made its order granting the motion for an order forbidding the taking of the depositions, and also made its order dropping the three alternative motions from the calendar. So far as the record shows, the court made this disposition by a minute order, which does not indicate the grounds for forbidding the taking of the depositions.

The contentions of the parties ¹ give rise to three issues which are: (1) Is mandamus a proper method of reviewing respondent's order? (2) Is deposition available to a party moving to modify an interlocutory judgment of divorce? (3) Did the order of the trial court constitute an abuse of discretion which may be reviewed herein?

Mandamus is the proper method of obtaining the relief sought herein.

An order denying a party utilization of a discovery proceeding is not directly appealable; and since review on appeal from such final order or judgment as may be made in the proceeding in which the discovery is sought would be an inadequate remedy, mandate is a necessary and proper method of obtaining relief (Greyhound Corporation v. Superior Court, 15 Cal.Rptr. 90, 364 P.2d 266.)).

The real party in interest attempts to refute this well-settled proposition of law by the argument that mandamus will not lie to compel an act discretionary with the trial court. Not only do his citations fail to sustain his arguments, ² the proposition does not refute the basic tenet that mandamus is a proper procedure to compel respondent court to set aside an improper order. If the order in question was within the discretion of the trial court, it was not improper. What the real party is really attempting to argue is not that mandate is not proper, but that there was no abuse of discretion. This last mentioned point is discussed later in this opinion.

The code provisions authorize the taking of depositions on pending motion to modify interlocutory judgment.

The pertinent portions of section 2016 of the Code of Civil Procedure provide that a deposition may be taken 'for the purpose of discovery or for use as evidence * * * or for both purposes. * * * in an action at any time after the service of the summons or the appearance of the defendant, and in a special proceeding after a question of fact has arisen therein.' In reliance upon the phrase 'in an action at any time after the service of the summons,' the real party argues that the section contemplates that depositions may be taken only in a 'pending' action, and that this action is no longer 'pending' because the interlocutory judgment has become final in the sense that the time for appeal has expired without appeal having been taken. This argument has been refuted in the recent case of See v. Superior Court, 55 Cal.2d 279, 10 Cal.Rptr. 634, in which it was held that a divorce action is still 'pending' for modification purposes after the interlocutory has become final. Moreover, this argument completely overlooks that provision of section 2016, subdivision (a), which authorizes depositions to be taken 'in a special proceeding after a question of fact has arisen therein,' and the provision of section 2035 to the effect that the word 'action' shall be construed to include a special proceeding of a civil nature. There is no claim that the motion to modify is not pending before respondent court, or that the respondent does not have jurisdiction to hear and pass upon that motion, or that an issue of fact has not arisen. By any definition which the real party may urge, that motion is either part of a pending action, or a special proceeding. (Code Civ.Proc., §§ 22 and 23.) It is also pertinent that subdivision (d) of section 2016 authorizes that depositions, when taken, may be used on 'the hearing of a motion or an interlocutory proceeding.'

It should also be here mentioned that the discovery statutes are to be liberally construed, and that the purpose of the statutes is to further the efficient, economical disposition of cases according to right and justice on the merits (Greyhound Corporation v. Superior Court, supra, 15 Cal.Rptr. 90). To hold that the statute does not authorize discovery proceedings on a motion such as is pending herein, would require the moving party to choose between proceeding without the efficient and economical preparation contemplated thereby, or to file a new and separate action to enforce...