Hartbrodt v. Burke

• Decision Date: 31 January 1996
• Docket Number: No. B083490,B083490
• Citation: 49 Cal.Rptr.2d 562,42 Cal.App.4th 168
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 706, 96 Daily Journal D.A.R. 1059 Rick HARTBRODT, Plaintiff and Appellant, v. William BURKE et al., Defendants and Respondents.

Page 562

49 Cal.Rptr.2d 562

42 Cal.App.4th 168, 96 Cal. Daily Op. Serv. 706,

96 Daily Journal D.A.R. 1059

Rick HARTBRODT, Plaintiff and Appellant, v. William BURKE et al., Defendants and Respondents.

No. B083490.

Court of Appeal, Second District, Division 4, California.

Jan. 31, 1996.

Engstrom, Lipscomb & Lack and Steven C. Shuman, Los Angeles, for Plaintiff and Appellant.

Quinn, Kully and Morrow, John J. Quinn, Eric L. Dobberteen, Sharon L. Douglass, Law Offices of Robert L. Corbin, Robert L. Corbin and James Bird, Los Angeles, for Defendants and Respondents.

CHARLES S. VOGEL, Associate Justice.

The issue presented by this appeal is whether the terminating sanction of dismissal of the complaint may be imposed for refusal to comply with an order of production made pursuant to Code of Civil Procedure section 2031 when plaintiff's refusal is based on the privilege against self-incrimination. A collateral issue is whether plaintiff may avoid a dismissal by voluntarily dismissing without prejudice prior to the hearing on the motion to dismiss. We resolve the first issue in the affirmative and the collateral issue in the negative and affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

On December 10, 1991, appellant Rick Hartbrodt filed an action against respondents William Burke, James Bainbridge, Bentley Industries Inc., Amtec, Ltd., a Barbados limited partnership, and Quantronics, a Hong Kong limited partnership, to recover $2,000,000. ¹ Hartbrodt's second amended complaint alleged 12 causes of action based on theories of contract and tort. The common and central allegation of Hartbrodt's pleading is the claim that he and the respondents orally agreed to create and operate a 900-number sweepstakes company. The agreement called for Hartbrodt to contribute $2,000,000 as working capital, and Burke and Bainbridge to be the primary operators contributing their personal experience, expertise, and contacts in the industry. For his Hartbrodt alleged that he transferred $2,000,000 to Quantronics in accordance with the agreement, but respondents failed to establish the sweepstakes company and refused to return his $2,000,000.

financial contribution, Hartbrodt was to receive, after the return of his capital, a 45 percent profit participation.

Respondents filed answers generally denying the allegations of the second amended complaint and raised 16 affirmative defenses.

On July 24, 1992, Burke served Hartbrodt with a formal demand for the production of "[A]udio or visual tape recordings of any communications between PLAINTIFF and DEFENDANTS, or any of them, between January 1, 1991 and the date of this demand." Hartbrodt objected to the demand asserting the privilege against self-incrimination found in the Fifth Amendment of the United States Constitution.

Burke moved for an order compelling production of the tape recording. In his declaration he stated the conversation took place in early July of 1991, prior to the filing of the action and involved "... some of the issues raised by [Hartbrodt] in the complaint filed in this case." Burke further averred that the day after the conversation, Hartbrodt telephoned him, said he had secretly tape-recorded their conversation, played 60 seconds of the tape for Burke, and said he would use the tape recording against Burke unless he was paid $2,000,000.

Hartbrodt opposed the motion on the ground that the tape recording was privileged and contained no relevant information bearing on the underlying oral agreement. It is uncontroverted that at all relevant times Hartbrodt was a defendant in a federal lawsuit filed by the United States of America in the Southern District of Iowa under the Mail and Wire Fraud Civil Injunction Statute, 18 United States Code section 1345, and that the federal action was stayed pending a criminal investigation of appellant.

The trial court referred the motion to compel to a discovery referee. The referee conducted an in-camera hearing to review a transcript of the tape recording. The referee found that the transcript contained relevant information and issued a proposed order for the production of the transcript except for the first two and one-half pages which he concluded were irrelevant. His proposed order directed that the original tape be made available for inspection by respondents' counsel, restricted the use of recording and transcript to this action, and prohibited its dissemination to any third person. ²

Hartbrodt objected to and did not comply with the referee's proposed order and succeeded in obtaining a de novo review by the trial court of his claim of privilege under the Fifth Amendment. After reviewing the transcript, the pleadings, and the motion papers and allowing extensive oral argument, the trial court found the transcript revealed "core issues" with "some real potential for relevant evidence and/or impeachment." On October 8, 1993, the trial court ordered the tape and transcript produced within 30 days. Hartbrodt failed to comply with the order. On November 17, 1993, respondents filed a motion for terminating sanctions requesting the action be dismissed with prejudice. ³

On December 3, 1993, just prior to the hearing on respondents' motion for dismissal, Hartbrodt submitted for filing a voluntary request for dismissal without prejudice pursuant

to Code of Civil Procedure section 581, subdivision (c). The trial court rejected appellant's voluntary dismissal and granted respondents' motion to dismiss with prejudice pursuant to Code of Civil Procedure 2023.

CONTENTIONS

Appellant contends that the trial court abused its discretion by ordering the production of the tape recording in the following particulars: (1) the tape recording does not contain any evidence relevant to the gravamen of appellant's claim; (2) the information contained on it was available to respondents through alternate sources; and (3) the court failed to consider alternative sanctions. Appellant further contends the court erred in rejecting appellant's submission of a voluntary dismissal without prejudice.

DISCUSSION

Relevant Evidence

Appellant's claim that the tape recording does not contain any information relevant to the gravamen of his claim is unpersuasive. The sealed transcript of the tape-recorded conversation between Hartbrodt and Burke is included in the record of this appeal. We have reviewed that transcript and conclude the trial court's characterization is accurate. The tape-recorded conversation is replete with "core issues" and contains "some real potential for relevant evidence and/or impeachment." Except for appellant's claim of privilege, all but the first two and one-half pages of the recorded discussion are either relevant to the pending action or to matters that appear reasonably calculated to lead to the discovery of admissible evidence. (Code Civ.Proc., § 2017.) In sum, our own review and analysis of the transcript of the tape recording wholly validates the trial court's finding that respondents are entitled to the production of the tape recording and transcript.

Alternate Sources and Alternative Sanctions

Appellant argues that respondents do not need to resort to the tape recording to discover what was said in the recorded conversation because Burke, as a party to the discussion, is an independent source of that information. We do not agree. Simply because a party participated in a discussion is not a valid basis for barring his access to any record of it. Because the tape recording is the only accurate and unimpeachable source of what was discussed, it is discoverable. Denying respondents access to the tape-recorded conversation would amount to requiring them to conduct discovery blindfolded.

Appellant suggests less drastic alternatives to dismissal exist that would satisfy respondents' needs and not compel him to waive his privilege against self-incrimination. However, none of the obvious alternatives is satisfactory. It is doubtful that appellant would allow Burke to testify as to what was said between them without testifying to his version of the conversation. And allowing both men (Burke and appellant) to testify about the conversation would be unjust because appellant would be shielding from the trier of fact the only trustworthy and complete record of their conversation. In other words, appellant wants to suppress the tape recording--the best evidence of the conversation--and is willing to take his chances that the trier of fact would find his version of it rather than Burke's more credible. That is a gamble the respondents cannot be compelled to accept.

In Rosemont v. Superior Court (1964) 60 Cal.2d 709, 36 Cal.Rptr. 439, 388 P.2d 671, the plaintiff was required before depositions were taken to provide the defendants with tape recordings of conversations conducted among the parties and witnesses. The plaintiff refused to comply. The Supreme Court held: "... [the] plaintiff is not seeking merely the advantages that would flow from the normal timing of discovery. He is seeking the advantages that would flow from his being able to refresh his recollection from the recordings before giving his deposition while denying to ... the other parties to those conversations equal opportunity to refresh their recollections before giving their depositions. We held in Dowell v. Superior Court [1956] 47 Cal.2d 483, 488 , that a similar attempt to make one-sided use of a prior statement of a party was obviously Appellant also suggests that the trial court "could determine what particular issues in the case the transcript could assist Respondents on, and fashion some appropriate evidence preclusion sanctions applicable to those issues which would not have the practical effect of imposing a dismissal, but would undoubtedly make Appellant's case much more difficult or make the defense easier." The argument fails because it was not made to the trial court. Appellant had the opportunity to review the transcript, to identify...