Chronicle Pub. Co. v. Superior Court In and For City and County of San Francisco

• Decision Date: 05 August 1960
• Citation: 54 Cal.2d 548,7 Cal.Rptr. 109
• Court: California Supreme Court
• Parties: , 354 P.2d 637 CHRONICLE PUBLISHING COMPANY (a Corporation) et al., Petitioners, v. SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SANFRANCISCO, Respondent, State Bar of California et al., Real Parties in interest. S. F. 20432.

Page 109

7 Cal.Rptr. 109

54 Cal.2d 548, 354 P.2d 637

CHRONICLE PUBLISHING COMPANY (a Corporation) et al., Petitioners, v. SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SANFRANCISCO, Respondent State Bar of California et al., Real Parties in interest.

S. F. 20432.

Supreme Court of California, In Bank.

Aug. 5, 1960.

Cooper, White & Cooper, Sheldon G. Cooper, George A. Helmer and William J. Dowling, Jr., San Francisco, for petitioners.

No appearance for respondent.

Victor E. Cappa, in pro. per., and Garrett H. Elmore, San Francisco, for real parties in interest.

BRAY, Justice pro tem.

Petitioners brought this proceeding in mandamus to compel the superior court (a) to vacate a minute order limiting the scope of a deposition, and (b) to require the State Bar and Jack A. Hayes, its secretary, to answer certain written interrogatories upon the taking of a deposition in a libel action. ¹

Questions Presented.

1. Is the desired information relevant?

2. Do the discovery statutes apply to nonparty witnesses?

3. Do the discovery procedures apply to a corporation?

4. (a) Are the files of the State Bar dealing with complaints concerning attorneys not resulting in public disciplinary action confidential? (b) Are the files confidential where a private reproval has resulted?

5. Did the court abuse its discretion in granting the protective order?

Record.

Victor E. Cappa, an attorney at law, one of the real parties in interest, brought a libel action against The Chronicle Publishing Company and the other petitioners herein, ² alleging that the Chronicle published an article about him that was false and libelous and injured him in his professional reputation and standing. He alleged that he had been admitted to practice law in this state for 32 years and that 'since 1943 he has practiced law in the City and County of San Francisco and has at all times as such attorney at law conducted and demeaned himself with honesty and propriety and has never been guilty of any misconduct in his said capacity and profession as an attorney at law and has come to enjoy and did enjoy at all times hereinafter mentioned a good name and reputation as an attorney at law.' This allegation was denied by the Chronicle for lack of information or belief except as to the fact that Cappa was duly admitted to practice law in this state.

In a second amended supplemental complaint Cappa alleged that after the filing of the action the Chronicle sent investigators to interview various friends and acquaintances of his, that they reiterated the charges made in the libelous article and imputed to Cappa other wrongful conduct, and that they invaded his right of privacy by inquiring as to personal matters irrelevant to the main action.

Cappa directed a series of interrogatories to the Chronicle in which it was asked, in connection with the denial of the allegation of good name and professional reputation, if it was the Chronicle's contention that Cappa has not conducted himself with honesty and propriety and has been guilty of misconduct in his capacity as an attorney. If such was the contention, the interrogatories directed the Chronicle to state the facts on which the denial was based, when and where Cappa had been guilty of misconduct, and of what it consisted.

Responding, the Chronicle stated that the complaint made a broad allegation covering a period of 32 years and including conduct of Cappa in this state and elsewhere, that it did not have information or belief on the subject sufficient to answer the allegation and based the denial on that ground, and that it had no information to indicate that Cappa had not conducted himself with honesty and propriety or had been guilty of misconduct as an attorney. Cappa objected to these answers, contending that they were equivocal and did not squarely meet the thrust of the interrogatories. The court ruled that the answers were sufficient for the present but that the Chronicle should be prepared at the time of the pretrial conference to answer the interrogatories 'yes' or 'no' so that Cappa could take certain depositions.

Thereafter Cappa filed a request for admissions, asking the Chronicle to admit that at the time of the publication of the article sued on he enjoyed a good professional reputation in the community. The Chronicle replied that it was unable to admit or deny this request, that it lacked sufficient information or belief to answer, and that it had no information to indicate that Cappa did not enjoy a good professional reputation.

The Chronicle then gave notice of the taking of a deposition upon written interrogatories addressed to the State Bar and its secretary, who made a motion for an order limiting the examination by excluding inquiry into information contained in the confidential files of the State Bar. ³ Hayes' affidavit filed in support of the motion, states that the public records of the State Bar do not show that any discipline was recommended or imposed upon Cappa, and that the State Bar Board of Governors directed that opposition be made to disclosure of confidential information. The Chronical seeks confidential information about such matters as the filing of any complaints regarding Cappa's professional conduct, the names of the complainants, if any, and the substance of such complaints; whether any investigation was conducted by the State Bar, and the substance of any information developed, with the names of persons from whom the information was received; and whether Cappa was admitted to practice in other jurisdictions, and if so, the nature of any complaints made or disciplinary action taken against him. It was urged that the matters sought to be excluded were privileged, that the public interest would suffer by disclosure and that the interrogatories were not in the proper form. The motion was granted and it was ordered that the interrogatories to which objection was made need not be answered. The interrogatories objected to and ordered not to be answered appear in the footnote. ⁴ 1. The Desired Information Is Relevant.

Real party in interest Cappa contends that it is only his professional reputation that is in issue here, and that specific acts of misconduct, if any, would not be admissible. Hence, he contends, any information which the State Bar might have concerning him would not be relevant to this action. The Chronicle, however, contends that the specific acts of misconduct, if any, appearing in the State Bar's records would be admissible, and that in any event, such information and particularly the names of the persons giving it, reasonably might lead to the discovery of persons who might be able to testify that Cappa's reputation was not as claimed. Cappa in his complaint appeared to go further than required in a libel action when he alleged in addition to an allegation that his professional reputation is good, ⁵ that he 'has never been guilty of any misconduct in his said capacity and profession as an attorney at law * * *' ⁶ The information requested is reasonably calculated to lead to the discovery of evidence of reputation, which obviously, if it exists, would be admissible. Section 2016, subdivision (b), Code of Civil Procedure, provides for discovery, among other matters, of 'the identity and location of persons having knowledge of relevant facts.' It expressly does not limit discovery to testimony that would be admissible at a trial, for it states: 'It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. * * *' (Emphasis added.) '(T)he statute (Code Civ.Proc., § 2016, subdivision (b)) expressly provides that discovery may be had as to any matter which is relevant to the subject matter involved in the pending action, with added proviso that inadmissibility at trial is not ground for objection if the information sought appears to be reasonably calculated to lead to the discovery of admissible evidence.' Pettie v. Superior Court, 178 Cal.App.2d 680, 3 Cal.Rptr. 267, 272. As to the new discovery procedures authorized by 1957 amendments to the Code of Civil Procedure (Stats.1957, ch. 1904, pp. 3321-3336), 'The Legislature obviously considered the discovery procedures desirable and beneficial. Their action merits liberal construction of the act by the courts.' Grover v. Superior Court, 1958, 161 Cal.App.2d 644, 648, 327 P.2d 212, 214.

Cappa contends further that because bad reputation is not a defense to a libel but can only be considered in assessing general damages (see 31 Cal.Jur.2d 10), information which might lead to discovery of evidence of bad reputation is not relevant in a discovery proceeding. The contention is without merit.

Also specific acts, if there are any, could be used in cross-examination of Cappa if he were to testify, as he alleges in his complaint, that he has never been guilty of any misconduct as an attorney. See People v. Westek, 31 Cal.2d 469, 190 P.2d 9, where in a criminal case where the defendant declared that he had never committed any improper acts on any boy, it was held that as impeachment the prosecution had the right to present responsible evidence tending to contradict the defendant's statement. Likewise, in cross-examining any witness testifying to Cappa's professional reputation, such witness may be asked if he had heard specific reports of misconduct, if such question is asked in good faith. 'In the absence of a showing of bad faith it is always within the scope of legitimate cross-examination to ask a character witness whether he has heard the person whose reputation is under investigation accused of conduct inconsistent with the character attributed to him by the witness.' People v. McKenna, 11 Cal.2d 327, 335-336, 79 P.2d 1065, 1969. It must be borne in mind that the Chronicle is not seeking to learn the action of the State Bar in its...