M.C.A. v. State of California

• Decision Date: 26 January 1982
• Citation: 181 Cal.Rptr. 404,128 Cal.App.3d 225
• Court: California Court of Appeals Court of Appeals
• Parties: M.C.A., Plaintiff and Appellant, v. The STATE OF CALIFORNIA, Defendant and Respondent. Civ. 24002.

Page 404

181 Cal.Rptr. 404

128 Cal.App.3d 225

M.C.A., Plaintiff and Appellant, v. The STATE OF CALIFORNIA, Defendant and Respondent.

Civ. 24002.

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

Jan. 26, 1982.

As Modified Feb. 24, 1982.

Hearing Denied March 25, 1982.

Charles L. Goldberg and Goldberg & Link, San Diego, for appellant.

Donald L. Clark, County Counsel, Lloyd M. Harmon, Jr., Chief Deputy County Counsel and Greer D. Knopf, Deputy County Counsel, San Diego, for respondent.

WIENER, Associate Justice.

The issue in this appeal by MCA, whose identity is protected under the federal witness program, is whether the trial court ruled correctly in denying his motion for reimbursement of expenses and attorney fees after he successfully resisted efforts under Penal Code section 1334.2 ¹ to compel his attendance before a Florida grand jury. Finding no statutory or common law basis to accommodate his request, we affirm the order.

In MCA's first appeal, we reversed the section 1334.2 order compelling his appearance before the grand jury of Broward County, Florida, and "remanded for further proceedings consistent with the views here expressed. Appellant to recover costs on appeal." (In re the Matter of the Attendance of MCA as a Material Witness, etc., 4 Civ. No. 22150, April 23, 1980.) Upon remand, the court denied MCA's motion for reimbursement from the State of California for all expenses and attorney fees incurred at both the trial and appellate levels. ² This appeal followed.

We begin by noting the familiar precept that California courts have consistently awarded attorney fees only on the basis of statute or an established common law doctrine. (See generally Bauguess v. Paine (1978) 22 Cal.3d 626, 150 Cal.Rptr. 461, 586 P.2d 942; Code Civ.Proc., § 1021.) The Uniform Act which governed the underlying proceedings (see fn. 1, ante) contains no provision for the award of attorney fees. ³

Recognizing that fact, MCA based his trial court motion for expenses solely on Code of Civil Procedure section 1987.2. ⁴ That civil discovery statute, of doubtful application in criminal proceedings (Fabricant v. Superior Court (1980) 104 Cal.App.3d 905, 914, 163 Cal.Rptr. 894), permits the trial court to award expenses, including attorney fees, against one who in bad faith or without substantial justification makes or opposes a motion to quash a subpoena.

We question the statute's application here where the legislatures of California and 48 other states have formalized the procedure for obtaining out-of-state witnesses pursuant to a Uniform Act. Unlike the administrative process of Code of Civil Procedure sections 1985 and 1986, permitting the clerk to issue a blank subpoena without notice to the witness, the Act provides a carefully structured mechanism to assure notice and hearing to the witness before the court issues the order compelling attendance. ⁵ Section 1334.2 requires the judge to set a hearing and make an order directing the witness to appear. Witnesses may then be called and evidence presented to establish whether the appearance of the cited witness is necessary and whether compelling him to appear in another state will cause him undue hardship. After the order is entered, either side has the right to appeal.

The manifest differences between the normal civil subpoena procedure and the specialized provisions of the Uniform Act compel a conclusion that the Legislature did not intend Code of Civil Procedure section 1987.2 to apply to cases arising under the Uniform Act. To begin with, MCA here seeks an award of expenses and attorney fees from the State of California. Section 1987.2 only authorizes a court to make such an award against a party litigant who seeks a subpoena without adequate justification. California did not seek to subpoena MCA; it merely processed Florida's request and conducted a hearing on the issue.

Second, it is also significant that the Act precludes the California court from questioning the reasonableness of the order of the out-of- state court issuing the certificate for attendance of a witness. The Act mandates the court receiving the certificate to direct the witness to appear at a hearing at a time and place fixed by the judge. In our view, it is unlikely the Legislature intended assessment of attorney fees and expenses against the fisc of this state in situations where the California court did nothing more than perform its statutory duty. ⁶

Finally, even were we to accept MCA's theory that California may be charged with bad faith based on the trial court's issuance of the subpoena, an order which this court later reversed on appeal, we would still find section 1987.2 inapplicable. ⁷ The purpose of the attorney fee provision in that section is to compensate the potential witness for attorney fees incurred in moving to quash the issued subpoena, fees which would not have been incurred but for the issuing party's bad faith. Proceedings under the Act, however, require a hearing before the issuance of the subpoena. Regardless of the outcome of that proceeding, a reluctant witness necessarily incurs expenses in resisting the issuance of the subpoena. This inevitable cost thus reflects the nature of the proceeding and not, as MCA contends, a court's bad faith. It would indeed be contrary to the underlying purpose of both statutory schemes to assess California when it has only attempted, both through legislation and judicial action, to assure its residents notice and an opportunity to be heard before ordering a resident to appear as a witness out of state.

We therefore conclude the Legislature did not intend Code of Civil Procedure section 1987.2 to apply to proceedings under the Uniform Act. ⁸ As to MCA's request for costs on his first appeal, we note that his failure to have complied earlier with the requirements ofCode of Civil Procedure section 1034 is not fatal because the trial court retains discretion to allow relief from failure to file timely. (See Wilson v. Hinkle (1977) 67 Cal.App.3d 506, 512, 136 Cal.Rptr. 731, cert. denied (1977) 434 U.S. 858, 98 S.Ct. 181, 54 L.Ed.2d 130.)

Disposition

Judgment is modified to permit MCA to request relief from the 10-day filing requirement of Code of Civil Procedure section 1034 in order to recover his costs on the first appeal. As modified, the judgment is affirmed. Each party to bear its own costs on this appeal.

WORK, J., concurs.

STANIFORTH, Acting Presiding Justice, dissenting.

I respectfully dissent.

The majority can find no specific authority in the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (the Uniform Act) (Pen.Code, § 1334 et seq.) for attorney fees, therefore concludes none was intended by the Legislature to be forthcoming. In focusing on the process of statutory construction by negative implication, the majority misses the factual essence of this case. MCA suppressed an order--an oppressive subpoena--to appear. He was without fault, enmeshed in the Act proceedings. He was not a person suspected of or accused of a crime but a bystander--a potential witness--sought to be compelled to testify in grand jury proceedings in Florida.

The majority not only fails to take full legal cognizance of these significant undisputed facts but also disregards the plain language contained in Code of Civil Procedure section 1987.2 which without qualification as to the nature of the proceedings, civil or criminal, or parties, authorizes the award of attorney fees and reasonable expenses to a party who successfully quashes an oppressive or bad faith subpoena.

Code of Civil Procedure section 1987.2 provides:

"In making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of reasonable expenses incurred in making or opposing the motion, including reasonable attorneys' fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive."

I

The motion to quash a subpoena referred to in Code of Civil Procedure section 1987.2 is authorized under Code of Civil Procedure section 1987.1 which provides in pertinent part:

"When a subpoena requires the attendance of a witness ... before a court, ... the court, upon motion reasonably made by the party or the witness, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions...."

The "subpoena" referred to in section 1987.1 of the Code of Civil Procedure is specifically defined in Code of Civil Procedure section 1985 as follows:

"The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring his attendance at a particular time and place to testify as a witness...." (Italics added.) ¹ In the instant case, the State of Florida, by and through the State of California, sought to compel the attendance of MCA before the Florida grand jury pursuant to proceedings under the Uniform Act. Pursuant to Penal Code section 1334.2, once a certificate from a judge of record in Florida is presented to the superior court in the County of San Diego seeking to require the attendance of a witness in San Diego before a Florida proceeding, the San Diego Superior Court shall fix a time and place for the hearing and "shall make an order directing the witness to appear at the hearing."

At the hearing before the superior court, the judge is required to determine that the witness is material and necessary and it will not cause undue hardship to the witness to be compelled to attend and testify before the grand jury of the demanding state. Once the judge is satisfied that these two requirements have been met, the statute instructs the judge...