Filipoff v. Superior Court of Los Angeles County

• Citation: 15 Cal.Rptr. 139,56 Cal.2d 443,364 P.2d 315
• Parties: , 364 P.2d 315 John W. FILIPOFF et al., Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; George Putnam et al., Real Parties in Interest. L. A. 26265.
• Decision Date: 03 August 1961
• Court: United States State Supreme Court (California)

Page 139

15 Cal.Rptr. 139

56 Cal.2d 443, 364 P.2d 315

John W. FILIPOFF et al., Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

George Putnam et al., Real Parties in Interest.

L. A. 26265.

Supreme Court of California, In Bank.

Aug. 3, 1961.

Joseph W. Fairfield and Ethelyn F. Black, Los Angeles, in pro. per.

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

Phill Silver, Hollywood, in pro. per., for real parties in interest.

PETERS, Justice.

Petitioner Filipoff (hereinafter referred to as the petitioner) seeks mandate to compel the respondent court to vacate one order and to make another in connection with certain discovery procedures.

Petitioner sued KTTV, Inc. (the owner and operator of radio station KTTV), and George Putnam (a broadcaster who with his attorney Phill Silver are the real parties in interest herein) for libel, based on certain statements made in discussing petitioner's activities in conducting the affairs of a trade union of which petitioner was an official. As one of his affirmative defenses Putnam pleaded reliance on reliable sources. This defense, of course, raised an issue as to such source material. Petitioner proposed several interrogatories in reply to which Putnam named several persons who had contributed the information on which the alleged libel was founded, and also stated that he had made notes and memoranda of his conversations with those informants. Petitioner then made a motion, under section 2031 of the Code of Civil Procedure, for an order authorizing inspection of those notes and memoranda. In opposition to that motion Putnam first obtained an order of the court authorizing him to dismiss his special defense, after which he argued that the notes and memoranda were no longer admissible evidence. The motion for inspection was then denied on the authority of Twin Lock, Inc. v. Superior Court, 171 Cal.App.2d 236, 340 P.2d 748. ¹ At that time the rules announced in the Twin Lock case justified the denial of the motion to inspect documents because it had held that inspection was not permissible unless the documents involved would be admissible on the trial of the action. Apparently for this reason, petitioner took no steps to review the order denying inspection. Instead, he noticed the deposition of Putnam, under the provisions of section 2016 et seq. of the Code of Civil Procedure, and obtained had served a subpoena duces tecum under the provisions of section 1985 of that code, requiring Putnam to bring with him and produce at the deposition the notes and memoranda in question. The propriety of such procedure could not be questioned under the Twin Lock rule, as it then existed, for the reason that such rule was predicated on an assumed distinction between the facts constituting good cause for inspection and those governing deposition. No motion was made to quash that subpoena or to otherwise test its validity, nor was any motion made under the provisions of subdivision (b)(1) of section 2019 to limit the scope of the deposition. At the deposition, Putnam testified that he had brought the material with him, and that it was all in the possession of his attorney (Mr. Silver) who was then present and representing him. In reply to several other questions, Putnam testified to a lack of memory, and stated that his recollection would be refreshed and that he would be able to give more complete answers if he had recourse to the notes and memoranda involved. Counsel for petitioner then, on several occasions, requested Mr. Silver to hand the documents to Putnam in order that the latter might refresh his memory and complete his answers to the questions previously propounded. On each such occasion Silver refused. In so refusing, he stated that, in his opinion, Putnam had fully complied with the subpoena duces tecum by causing the documents to be brought to the deposition, that he was under no compulsion to make them available for the reason that the trial court had previously made its order denying inspection of the very documents now requested, that under the current circumstances he would continue in such refusal unless and until the trial court ordered him to hand the documents to his client, but that he would change his attitude and voluntarily comply with the request if petitioner would enter into a stipulation reinstating Putnam's affirmative defense of reliance on reliable sources. He did not propose a recess or termination of the deposition, as provided by subdivision (d) of section 2019 for the purpose of referring the question to the trial court. ² On the contrary, he merely continued in his refusal to produce the documents described in the subpoena, thus placing the burden of obtaining compliance on petitioner. Petitioner, then, noticed a motion for an order 'directing the defendant George Putnam and his attorney, Phill Silver, to refer to certain notes, documents, papers and records in answering questions on the oral deposition of George Putnam and to permit counsel for * * * (petitioner) in interrogating the said George Putnam on his oral deposition to use and employ the said notes.' ³ The transcript of the deposition was presented with the motion. On January 12, 1961, respondent made its order denying that motion together with its finding that the 'motion was made without substantial justification within the meaning of section 2034, subd. (a), Code Civ.Proc.', and the additional order that petitioner's attorneys pay Putnam the sum of $150 as the reasonable expenses incurred by him, including attorney's fees, which sum shall not be recoverable as costs. This is the order that is under attack in this proceeding. Petitioner seeks a writ requiring respondent to set aside the order in its entirety, and further requiring it to grant the motion as made.

The order of the trial court discloses the grounds upon which it was made. These may be summarized as follows: (1) the transcript of the deposition shows that Putnam has not failed to answer any question put to him, but on the contrary indicates that his counsel has simply refused to comply with a request to turn over certain documents to the witness; (2) section 2034 from the latter's notes and memoranda is limited to those cases in which 'a party or other deponent refuses to answer any question propounded upon examination during the taking of a deposition'; (3) to obtain such an order the motion must direct the court to a specific refusal to answer; (4) the request that counsel for petitioner be permitted to interrogate Putnam from the latterhs notes and memoranda is tantamount to a motion for inspection, which may only be made under the provisions of section 2031, and cannot be reached by recourse to section 2034.

This reasoning is unsound. In the first place, it was erroneous to assume that petitioner's motion was made exclusively under that portion of section 2034 which refers to the refusal to answer questions. ⁴ From the language of the trial court's order it would appear that the motion was for an order directing Putnam and his attorney to refer to the designated documents in order to fully answer certain questions. Such a request may have been made under provisions of section 1985 et seq. of the Code of Civil Procedure, or under the provisions of subdivision (b) of section 2034. Sections 1985 and 1986 authorize the issuance of a subpoena duces tecum, as was issued herein, requiring a witness to bring with him described books, or documents or other things under his control. Prior to 1959 section 1991 provided the method of enforcing compliance or punishing refusal. By its terms, punishment could not be predicated on a refusal until the court had first ordered the witness to comply. In 1959 the Legislature added sections 1991.1 and 1991.2 providing, respectively, that disobedience of a subpoena requiring attendance as a witness at a deposition might be punished as a contempt without the necessity of a prior court order directing compliance, and that the provisions of section 2034 shall thereafter apply to any act or omission connected with a deposition, in lieu of the provisions of section 1991. Section 1992, which was not affected by the 1959 amendment, provides certain 'forfeitures' from a witness who fails to obey a subpoena. To avail himself of the benefits of this section, a party must first, in some manner bring the alleged disobedience of the witness to the attention of the trial court. A motion requiring the witness to comply with the terms of the subpoena is appropriate for this purpose. Therefore, in the present case petitioner's motion to compel production of the designated documents may have been made under section 1992.

Even if petitioner was not proceeding under section 1992, and was proceeding under section 2034, the record shows that at no time did petitioner request an order requiring the witness to answer a specific question. Petitioner moved for an order requiring the witness and his attorney 'to refer to certain' documents in answering the questions which had been propounded. Since the subpoena called for the production of those documents, the mere bringing of them to the deposition was not, in any real sense, 'production.' The refusal of Mr. Silver, who was the agent and attorney for the witness, to let the documents out of his possession, was tantamount to a refusal to produce, and thus came within the purview of subdivision (b) of section 2034 which deals with the refusal to obey a subpoena. Although section 2034 sets forth all the penalties that may be imposed for refusal to obey the terms of a subpoena, it does not prescribe the mechanics of bringing the matter to the attention of the trial court, which obviously must be done before the court can prescribe the alternative sanctions or penalties therein provided. The method of enforcing subdivision (b) of section 2034 is to be found in other provisions of...