Fairfield v. Superior Court for Los Angeles County

• Decision Date: 03 November 1966
• Citation: 246 Cal.App.2d 113,54 Cal.Rptr. 721
• Court: California Court of Appeals
• Parties: Joseph W. FAIRFIELD, Petitioner, v. SUPERIOR COURT FOR the COUNTY OF LOS ANGELES, Respondent; Sam MESLER, David Pick, Maurice Kandel and Judith Kandel, Real Parties in Interest. Civ. 30901.

Page 721

54 Cal.Rptr. 721

246 Cal.App.2d 113

Joseph W. FAIRFIELD, Petitioner, v.SUPERIOR COURT FOR the COUNTY OF LOS ANGELES, RespondentSam MESLER, David Pick, Maurice Kandel and Judith Kandel, Real Parties in Interest.

Civ. 30901.

District Court of Appeal, Second District Division 1, California.

Nov. 3, 1966.

Joseph W. Fairfield, Beverly Hills, and Ethelyn F. Black, Los Angeles, for petitioner.

Harold W. Kennedy and Donald K. Byrne, Los Angeles, for respondent.

Pick & Miller, Beverly Hills, for real parties in interest.

McCOY, Justice pro tem.^*

Petitioner seeks a writ of mandate requiring the Superior Court for Los Angeles County to vacate that part of its order of July 22, 1966 which imposes sanctions against him.It appearing to us that the order was corrected Nunc pro tunc by an order of the trial court on August 11, 1966, we issued an alternative writ requiring the trial court to vacate or modify its order as corrected insofar as it imposed sanctions against petitioner, or to show cause why it had not done so.

At all times material here petitioner was attorney of record in the trial court for the defendants in action number 852667, in which Sam Mesler was the plaintiff and Maurice and Judith Kandel were the defendants.In December 1965the plaintiff in that action served a set of interrogatories on the defendants pursuant to section 2030, Code of Civil Procedure.In January 1966the trial court denied defendants' motion for a protective order and ordered them to file their answers to the interrogatories within 15 days.On January 27defendants filed their objections to each of plaintiff's interrogatories as provided by section 2030.These objections were overruled on February 28, at which time, on plaintiff's motion, both defendants were ordered to file their answers within 20 days.

The trouble here started when answers to the interrogatories were filed by Maurice Kandel only.Believing that 'said answers are not reasonably adequate responses to the interrogatories and are in fact sham,'plaintiff noticed a motion for an order requiring further answers from Maurice Kandel to certain interrogatories and an order requiring him to pay plaintiff'reasonable expenses and attorney fees in obtaining such order,' and for an order holding Judith Kandel in contempt and for sanctions against her.On granting this motion on April 20, 1966, the trial court filed a memorandum concluding with the following order: 'It is time defendants and their counsel faced up to the necessity of making full and adequate answers to these interrogatories.Objections first by way of a request for a protective order and then by way of objections in lieu of answers have been twice overruled.The motion for order compelling further answers is granted in its entirety.Answers to be filed not later than June 15th.Sanctions of $100.00 as to each defendant for unnecessary legal work required of plaintiff are ordered at this time without prejudice to a motion for further sanctions should defendants again fail to properly answer the interrogatories.'

On June 15, 1966 the Kandels, through petitioner as their attorney, petitioned this court for a writ of mandate (2d Civ. No. 30711) requiring the trial court to vacate its orders of February 28 and April 20.This petition was denied without opinion on June 16.Plaintiff thereupon noticed a motion to be heard on July 11 for an order imposing additional sanctions on both defendants and upon petitioner here as their attorney, and holding them in contempt for failure to comply with the order of April 20.This motion was made on the ground that defendants'have wilfully failed to serve answers to the interrogatories as required in the order of April 20, 1966, and that defendants' attorney, Joseph W. Fairfield, is responsible in whole or in part for such failure to obey said court order.'In making this motion plaintiff relied on section 2034, subdivision (b)(2)(IV), Code of Civil Procedure, and the recent case of Weinkauf v. Superior Court, 64 A.C. 719, 51 Cal.Rptr. 100, 414 P.2d 36.In his declaration in support of the motion counsel for plaintiff advised the court of the denial of defendants' petition for a writ of mandate by this court on June 16, and alleged that as of June 27defendants had not yet complied with the order of April 20.

In due course petitioner filed his declaration in opposition to plaintiff's motion, dated July 1.He there alleged, among other things, that on June 27defendants filed their petition with the Supreme Court for a hearing pursuant to Rule 28(b),California Rules of Court.He also challenged the statement of plaintiff's attorney that as attorney for defendantshe was responsible in whole or in part for his clients' failure to obey the order of April 20.On July 11the trial court continued plaintiff's motion to July 18 to await the ruling of the Supreme Court.The record in 2d Civ. 30711 shows that the petition for hearing was denied by the Supreme Court on July 13.

Plaintiff's motion was argued and submitted on July 18.On July 22the trial court entered the following minute order: 'Motion granted; defendants not having filed answers as ordered notwithstanding that relief was denied them by both the District Court of Appeal and the Supreme Court and not having paid sanctions heretofore assessed, additional sanctions of $200.00 are assessed against defendants And their counsel.Motion to hold defendants in contempt is denied without prejudice to renewal if sanctions are not paid and answers filed within 10 days of notice of this ruling.'(Emphasis by the trial court.)A motion by petitioner for reconsideration and modification of this order was denied on August 4.

The petition now before us for a review of the order of July 22 was served and filed August 9.The first point raised by petitioner in his attack on the order is that the court made no finding that the failure to submit answers to the interrogatories by June 15 as required in the order of April 20'was wilfully done.'This omission was cured by the trial court on August 11 when it entered the following minute order: 'The motion of plaintiff for imposition of sanctions having been expressly based on the ground that the failure to file answers was wilfull on the part of defendants and was counselled by their attorney and the court in granting said motion so found and advised the clerk of his findings; and through clerical error the clerk failed to include in the minute order of July 22, 1966, such finding by the court; Now, therefore, the minute order of July 22, 1966 is corrected Nunc pro tunc as of said date to read as follows: 'Motion granted.Defendants upon counsel of their attorneys having wilfully not filed answers as ordered, notwithstanding that relief was denied them by both the District Court of Appeal and the Supreme Court, and not having paid sanctions heretofore assessed, additional sanctions of $200.00 are assessed against defendants and their counsel."

We are thus left with the question whether the trial court abused its discretion in making the order of July 22 as corrected Nunc pro tunc by the order of August 11 insofar as it sought to impose sanctions against petitioner as the attorney for defendants.

The power of the trial court to impose sanctions for the failure of a party to make discovery and to protect against the abuse of discovery procedures is governed by several provisions of the Code of Civil Procedure.(SeeRosen v. Superior Court, 244 A.C.A. 667, 53 Cal.Rptr. 347.)A review of those provisions which are applicable to the case before us will be helpful.

Section 2030, Code of Civil Procedure as enacted in 1957 added a new device for pretrial discovery not previously existing in California.Briefly, that section provides that a party may, without previous court order, require a party to answer in writing and under oath written interrogatories calling for information, not privileged, which is relevant to the subject matter of the action.To insure compliance with this section, the Legislature provided that if a party'willfully fails to serve and file answers to interrogatories submitted under Section 2030 of this code, after proper service of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose such other penalties of a lesser nature as the court may deem just, and may order that party or his attorney to pay to the moving party the reasonable expenses in making such motion, including reasonable attorney's fees.'(Code Civ.Proc., § 2034, subd. (d).)By the terms of this section, the imposition of such drastic sanctions requires an express finding that there has been a willful failure of the party or his attorney to serve the required answers.(Weinkauf v. Superior Court, 64 A.C. 719, 51 Cal.Rptr. 100, 414 P.2d 36.)

Recognizing that a party may serve his answers to some of the interrogatories and refuse by way of objection to answer others, as permitted by section 2030, the Legislature also provided appropriate relief in such a case.Thus, it is provided in subdivision (a) of section 2034 that '(u)pon the refusal of a party to answer any interrogatory submitted under Section 2030 of this code, the proponent of the question may,' on noticed motion apply to the court for 'an order compelling an answer' to the particular interrogatory.In such cases, '(i)f the motion is granted and if the court finds that the refusal was without substantial justification the court may require the refusing party or deponent and the party or attorney advising the refusal or either of them to pay to the examining party the amount of reasonable expenses incurred in obtaining the order, including reasonable attorney's fees.If the motion is denied and if the court finds that the motion was made...