Pacific Tel. & Tel. Co. v. Superior Court

Decision Date13 March 1970
Citation2 Cal.3d 161,84 Cal.Rptr. 718,465 P.2d 854
CourtCalifornia Supreme Court
Parties, 465 P.2d 854 PACIFIC TELEPHONE AND TELEGRAPH COMPANY et al., Petitioners, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent, James DUKE, Real Party in Interest. L.A. 29650.

Eugene L. Freeland, Richard Alexander Burt, Timothy V. McFarland, Michael Justin Myers and Gray, Cary, Ames & Frye, San Diego, for petitioners.

No appearance for respondent.

Casey, McClenahan & Fraley and Thomas W. Hauser, San Diego, for real party in interest.

TOBRINER, Acting Chief Justice.

Pacific Telephone and Telegraph Company and two of its employees, William Parr and Glenn German, seek a writ of prohibition to restrain the Superior Court of San Diego County from enforcing an order requiring response to 97 questions propounded during pretrial oral depositions 1 on the ground that the questions are irrelevant to the pending litigation. We have concluded that in light of the liberal and necessarily flexible standard of 'relevancy' delimiting the arena of discoverable matter, the trial court did not abuse its discretion in ordering the deponents to answer the contested inquiries.

This petition for writ of prohibition arises out of litigation instituted by James Duke, 2 the real party in interest, against Pacific Telephone and Telegraph Company and its employees Parr and German, based on an alleged invasion of privacy through unauthorized wiretapping. According to Duke's second amended complaint, filed on June 23, 1967, the individual defendants, employed in the Security Division of PT & T's San Diego office, 'deliberately and maliciously' installed, in March 1966, an interception device on his telephone line without his knowledge or consent for the sole purpose of eavesdropping on all telephone calls initiated and received by him. Defendants allegedly knew, at the time of this monitoring, that their actions constituted an invasion of Duke's privacy and were 'illegal.' 3 The complaint additionally claims that through the continued use of the intercepting or 'bugging' devices, defendants acquired information which they communicated to the San Diego Police Department. Allegedly as a result of this communication. Duke was arrested and charged with numerous felonies; although these charges were subsequently dismissed, the initial arrest, executed while Duke was at work, purportedly led to Duke's discharge from his job, to which he has not been rehired. The complaint declares that Duke has suffered substantial actual injury as a result of the defendant's 'malicious' invasion of his privacy and prays for general and punitive damages.

Defendants initially filed an unverified answer containing a general denial to the allegations of the complaint. Plaintiff Duke thereafter began his attempt at discovery; on October 30, 1967, plaintiff served interrogatories on defendant Parr, which were answered on November 28, 1967. 4 In February 1968, upon due notice, a deposition of defendant Parr was undertaken but not completed because of Parr's refusal to answer some questions. Several months thereafter, on May 28, 1968, again upon proper notice, plaintiff took the depositions of defendants Parr and German, and non-defendant Behrns. Questions propounded at those three oral depositions are challenged in the instant petition for a writ of prohibition.

The inquiry at all three depositions apparently followed a similar pattern and, upon the advice of defendants' counsel, all deponents refused to answer questions which might be loosely described as being of a 'general' nature. Although the questions to which the three deponents declined to respond differed in some respects, the questions can be satisfactorily classified into four categories: 5 (1) questions relating to the procedure used in making unauthorized taps of phone conversations (training of personnel, equipment, authority among employees); (2) questions relating to the deponent's knowledge of the illegality of unauthorized monitoring; (3) questions relating to a possible working relationship between the San Diego Police Department and the Security Division of PT & T; and (4) questions relating to the monitoring of telephone conversations of subscribers other than plaintiff, including the frequency of such monitoring and the experience of deponent in such monitoring generally. 6

Following the refusal of the deponents to answer these numerous inquiries on May 28, 1968, plaintiff filed three motions with the superior court, to compel the deponents to answer the posed questions. (Code Civ.Proc. § 2034.) Defendants opposed the motion on the ground that the questions were irrelevant to the litigation and therefore not proper matters for discovery. Following oral argument and a review of the parties' respective memoranda of points and authorities, the superior court, on September 6, 1968, issued an order compelling answers to 97 of the challenged questions.

Four days later, on September 10, 1968, defendants apparently attempted to narrow the issues of the litigation and thereby avoid the searching discovery approved by the trial court. Defendants filed an amended answer admitting that they had attached a tape recorder to the plaintiff's telephone line without his knowledge and consent and had recorded and subsequently examined the content of plaintiff's telephone conversations. 7 Defendants continued to deny, however, that they knew that their action constituted an invasion of privacy or was illegal or that their conduct was 'malicious'; they contended, instead, that the purpose of making a tape recording of the phone conversations was to learn the identity of plaintiff's accomplices, who, with the plaintiff, had allegedly perpetrated crimes against the telephone company. Defendants alleged that the arrest of plaintiff described in the complaint involved his participation in a burglary of a telephone booth, but they disclaimed any communication between the telephone company and the police that resulted in plaintiff's arrest; they further denied the infliction of any damages upon plaintiff. Finally, in this amended answer defendants proffered two affirmative defenses: (1) that any communication between the telephone company and the police was true and (2) that plaintiff was guilty of the criminal charges that had been dismissed.

In substance, in admitting the interception of plaintiff's phone conversations but denying liability, defendants maintain that their unauthorized monitoring was justified by plaintiff's alleged criminal activity against telephone company property. In pleading plaintiff's guilt of burglary as an affirmative defense, defendants apparently contend that their invocation of monitoring as a form of investigatory 'self-help' 'excuses' the consequent invasion of plaintiff's privacy; or, stated in another way, defendants seem to claim that under these circumstances interception of telephone conversations constitutes justifiable nontortious behavior reasonably adopted to protect the telephone company's own property.

At this time, we have no occasion to pass on the validity of this seemingly novel defense to an invasion of privacy action. 8 The instant petition does not arise on direct appeal from the litigation, but was filed on October 1968 as an attack on the superior court's order of September 6, 1968, which required deponents to answer 97 questions to which they had earlier refused to respond. Defendants' sole objection here is that the disputed inquiries are irrelevant to the litigation, and thus not properly discoverable under section 2016, subdivision (b), of the Code of Civil Procedure; they claim that the superior court exceeded its jurisdiction in ordering the deponents to answer these questions. 9 Defendants seek a writ of prohibition to restrain the superior court from enforcing its order.

Initially, we must consider the availability of the prerogative writ sought by the defendants in this setting. We spoke directly to the question of the circumstances that would normally justify the invocation of an extraordinary writ in discovery cases in Oceanside Union School District of San Diego County v. Superior Court (1962) 58 Cal.2d 180, 185--186, 23 Cal.Rptr. 375, 378, 373 P.2d 439, 442, fn. 4: 'The prerogative writs have been used frequently to review interim orders in discovery cases (citations). But this does not mean that these discretionary writs will or should issue as of course in all cases where this court may be of the opinion that the interim order of the trial court was erroneous. In most such cases, as is true of most other interim orders, the parties must be relegated to a review of the order on appeal from the final judgment. As inadequate as such review may be in some cases, the prerogative writs should only 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.'

Despite this express declaration of the necessary limitations on the availability of the prerogative writs, and our reaffirmance of this standard in subsequent cases (see e.g., Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 585, 55 Cal.Rptr. 772, 422 P.2d 332; Waters v. Superior Court (1962) 58 Cal.2d 885, 890, 27 Cal.Rptr. 640, 376 P.2d 568), at least some appellate courts have apparently continued to consider prerogative writs as the normal instruments for reviewing discovery orders. (E.g., Peck's Liquor Inc. v. Superior Court (1963) 221 Cal.App.2d 772, 775, 34 Cal.Rptr. 735, 736, 'When, in discovery proceedings, the trial court issues its order requiring answers to questions propounded, a petition for writ of prohibition is a proper remedy by which a petitioner may seek review of the propriety of that order.'; Poeschl v. Superior Court (1964) 229 Cal.App.2d 383, 40 Cal.Rptr. 697; O'Brien v. Superior...

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