Daly v. Superior Court

• Decision Date: 16 March 1977
• Docket Number: S.F. 23503
• Citation: 19 Cal.3d 132,137 Cal.Rptr. 14,560 P.2d 1193
• Court: California Supreme Court
• Parties: , 560 P.2d 1193 Stephanie J. DALY et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; George DUNCAN et al., Real Parties in Interest.

Page 14

137 Cal.Rptr. 14

19 Cal.3d 132, 560 P.2d 1193

Stephanie J. DALY et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent George DUNCAN et al., Real Parties in Interest.

S.F. 23503.

Supreme Court of California, In Bank.

March 16, 1977.

Herron & Watson, Frederick E. Watson and Patrick A. Nielson, San Francisco, for petitioners.

No appearance for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., John K. Van de Kamp, Dist. Atty., Harry B. Sondheim and Eugene D. Tavris, Deputy Dist. Attys., Los Angeles, as amici curiae on behalf of respondent.

Hession, Creedon, Hamlin, Kelly, Hanson & Farbstein, Francis J. Stillman, San Mateo, Gerald P. Martin, Jr., Oakland, and Joseph D. Ryan, Jr., Berkeley, for real parties in interest.

WRIGHT, ^* Justice (Assigned).

Petitioners sued numerous defendants including real parties in interest Duncan, Olsen, and Ryan for wrongful death and other torts. On depositions taken by petitioners these real parties in interest responded to questions by claiming their privilege against self-incrimination. Petitioners made a motion to the respondent trial court to nullify the claims of privilege by granting real parties in interest immunity against the use of their deposition answers, or of evidence derived from such answers, in any criminal proceeding against them. The motion was denied and petitioners now seek a writ of mandate directing issuance of such an immunity order. They rely principally upon People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421, 115 Cal.Rptr. 812, 525 P.2d 716, where, in an action By the People for civil penalties 'intended as a deterrent against future misconduct and (constituting) a severe punitive exaction by the state' (12 Cal.3d at p. 431, 115 Cal.Rptr. at p. 819, 525 P.2d at p. 723), we held that the People's motion for a similar immunity order should be granted for the purpose of compelling the defendants to testify on deposition.

Unlike the Kaufman suit, the litigation underlying the present writ proceeding is solely between private parties. No representative of the People is before the trial court. Yet the effect of requiring the real parties in interest to give self-incriminating testimony under the umbrella of the proposed immunity order would be to encumber any future criminal proceeding against any of them with a 'heavy burden' by 'impos(ing) on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.' (Kastigar v. United States (1972) 406 U.S. 441, 460, 461, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212.) As will be more fully explained, we have concluded that to interpose such an obstacle to criminal proceedings over the objection of prosecuting authorities would constitute improper judicial interference with prosecutorial discretion. Accordingly, the requested immunity order should not be granted without prior fulfillment of certain conditions which include notification to prosecuting officials of the nature and scope of the proposed immunity, opportunity for those officials to object to the granting of immunity, and the absence of any such objection by such officials.

By their amended complaint petitioners seek damages for wrongful death, battery and intentional infliction of mental distress. The complaint includes the following allegations: Petitioners are the widow, minor children, and administrator of the estate of Allen W. Daly. Prior to his death on July 16, 1970, Daly was employed by the publisher of the Independent Journal, a newspaper in San Rafael. In January 1970, the newspaper's employees who were members of the International Typographers Union (ITU) and its Local No. 21 (Local 21) went out on strike. Also actively participating in the strike was San Francisco-Oakland Mailers Local No. 18 (Local 18), an affiliate of ITU, which aspired to become the union representative of the newspaper's mailer employees. After the strike commenced the newspaper continued to be published through nonunion and management employees, including Daly. ITU, Locals 18 and 21, and numerous individuals conspired to coerce Daly and his fellow workers to withhold their services from the newspaper. Persons hired for this purpose by Frank Thurber, a member of Local 18, threw fire bombs into the Daly home on June 15 and 16, 1970. On July 4, 1970, two of these persons entered the Daly home with a drawn pistol and beat Daly and, in the presence of his wife and children, shot him. He died 12 days later. Thurber was convicted of the murder of Daly.

At the time of these events the defendants named in the present petition as real parties in interest held the following positions: Duncan was an employee of ITU placed in charge of the strike; Olsen was the president of Local 21; and Ryan was the shop steward of Local 18. The complaint joins the Marin County Labor Council, the San Francisco Labor Council, and their numerous member unions as defendants and imputes the alleged wrongful acts to them on theories of agency.

On May 29, 1974, the trial court denied petitioners' motions for a protective order under Code of Civil Procedure, section 2019, subdivision (b)(1), which would grant 'use immunity' to real parties in interest Ryan and Duncan and compel them to answer questions on deposition to which they had refused to respond on grounds of self-incrimination. However, the court granted petitioners' alternative motion that Ryan and Duncan be precluded from testifying at trial unless they filed timely waivers of their privilege for purposes of discovery. Subsequently petitioners renewed their motions to grant immunity to Ryan and Duncan and made a similar motion with respect to real party in interest Olsen in light of our decision on August 27, 1974, in People v. Superior Court (Kaufman), supra, 12 Cal.3d 421, 115 Cal.Rptr. 812, 525 P.2d 716. These motions were denied on June 16, 1975, in an order in which the trial court noted its view that 'the granting of use immunity under the circumstances of this case would not be consistent with both legislative intent and the effective enforcement of the criminal laws.' ¹

In response to the present petition an alternative writ of mandate was issued requiring the trial court either to enter an order 'granting use and derivative use immunity to Real Parties in Interest and compelling them to respond to discovery' or to show cause why it had not done so. The questions which real parties in interest Duncan, Olsen and Ryan had refused to answer on deposition on grounds of possible self-incrimination are not before us. The petition for the writ describes their refusals as based on apprehension that answers would tend to prove guilt of murder. Ryan's return to the alternative writ expressly denies that his claim of the privilege was grounded on the possibility of a murder charge. He states that the only questions he refused to answer related to his alleged conduct of a lottery or other scheme to raise money for Thurber's defense and for support of the strike and suggests that answering the questions would have placed him in jeopardy of Federal prosecution. Duncan's memorandum opposing issuance of the alternative writ attaches a copy of petitioners' pretrial statement from which Duncan undertakes to demonstrate petitioners' intention to implicate him not only in the plot to murder Daly but also in federal crimes of conspiracy and of use of the mails and instrumentalities of interstate commerce to commit crimes of violence. Olsen has not appeared in the present writ proceeding.

The alternative writ was properly issued. Mandate may 'be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases.' (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185, fn. 4, 23 Cal.Rptr. 375, 378, 373 P.2d 439, 442; accord: Rudnick v. Superior Court (1974) 11 Cal.3d 924, 928, 114 Cal.Rptr. 603, 523 P.2d 643; Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169, 84 Cal.Rptr. 718, 465 P.2d 854; Associated Brewers Distr. Co. v. Superior Court (1967) 65 Cal.2d 583, 585, 55 Cal.Rptr. 772, 422 P.2d 332.) The power of a trial court to grant a prospective witness use immunity and derivative use immunity for the purpose of facilitating discovery by a private party is a question meeting these criteria.

Real parties in interest Duncan and Ryan contend that the present proceeding should be dismissed as moot because petitioners' claims against them and some of the other defendants in the underlying action have now been settled. Petitioners acknowledge that after filing their petition they agreed on a settlement of their claims against all defendants in the case (including real parties in interest) except (1) six local unions against which default judgments have been entered and (2) over 100 other local unions which were granted a summary judgment from which petitioners have taken an appeal that remains pending. However, petitioners also state that if the summary judgment is reversed they will proceed to trial against the local unions and will take the depositions of real parties in interest who will probably again refuse to answer questions on grounds of the privilege against self-incrimination, and that petitioners will probably then move for a protective immunity order and thus again raise the principal legal issue now before us.

The trial court's disposition of any such motion would be governed by our present resolution of the legal issue under the doctrines of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) and the law of the case (People v. Shuey (1975) 13...