Regents of University of Cal. v. Superior Court In and For City and County of San Francisco

• Decision Date: 28 February 1962
• Citation: 19 Cal.Rptr. 568,200 Cal.App.2d 787
• Parties: The REGENTS OF the UNIVERSITY OF CALIFORNIA and Gilbert Gradinger, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent, Harry Fish, Real Party in Interest. Civ. 20279.
• Court: California Court of Appeals Court of Appeals

Page 568

19 Cal.Rptr. 568

200 Cal.App.2d 787

The REGENTS OF the UNIVERSITY OF CALIFORNIA and Gilbert Gradinger, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent Harry Fish, Real Party in Interest.

Civ. 20279.

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

Feb. 28, 1962.

As Modified March 28, 1962.

Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, for petitioners, Robert A. Seligson, San Francisco, of counsel.

Hersh & Hadfield, San Francisco, for Harry Fish.

TOBRINER, Justice.

We have concluded, for the reasons set forth infra, that the personal and family psychiatric history of a plaintiff who sues for unlawful commitment is not remote to the subject matter of such a suit, and it is reasonably calculated to lead to the discovery of admissible testimony; it is accordingly testimony procurable on deposition under section 2016, subdivision (b), of the Code of Civil Procedure.

Petitioners seek a writ of mandate commanding respondent superior court to grant their motion for an order to compel answers to questions propounded to real party in interest (plaintiff) at his deposition. In an action pending in the City and County of San Francisco plaintiff has charged petitioners with liability for false arrest, imprisonment and malicious prosecution, alleging that on February 5, 1959, petitioners without reasonable cause, caused him to be unlawfully arrested and imprisoned in the psychopathic detention ward within San Francisco General Hospital and that plaintiff was thereafter forcibly detained until released, pursuant to court order, on February 10, 1959.

As a second cause of action the complaint sets forth that on February 9, 1959, petitioners maliciously and without probable cause, filed a petition in the superior court pursuant to section 5047 of the Welfare and Institutions Code; that petitioners alleged that 'plaintiff was believed to be mentally ill and in need of supervision, care or treatment'; that thereafter, pursuant to said petition, the superior court ordered plaintiff to be detained and examined and 'plaintiff was detained in the psychopathic ward of the San Francisco General Hospital'; that the superior court on February 10, 1959, directed that plaintiff be discharged from detention.

Pursuant to notice petitioners took plaintiff's deposition, and, in the course of the deposition, plaintiff, on advice of counsel, refused to answer certain questions pertaining to matters which we set out infra. The court denied petitioners' motion for an order to compel answers to these queries. The questions pertained to the following subject matters:

1. Questions concerning plaintiff's failure to file income tax returns for 1959 and 1960.

2. Questions concerning prior psychiatric care, consultation and hospitalization.

3. Questions as to whether or not anyone in plaintiff's family had ever been in a mental institution.

4. Questions concerning plaintiff's prior defamation suit.

We shall determine the propriety of petitioners' procedure to bring the matter before us, then identify the precise issue involved, and finally analyze separately the validity of petitioners' application for our intervention in each of the four areas of questioning set forth above.

The procedure of mandate constitutes a proper method for obtaining relief in the circumstance of a discovery procedure. No appeal lies from an order denying such discovery. '[S]ince review on appeal from such final order or judgment as may be made in the proceeding in which the discovery is sought would be an inadequate remedy, mandate is a necessary and proper method of obtaining relief * * *.' (Carlson v. Superior Court (1961) 56 A.C. 428, 433, 15 Cal.Rptr. 132, 134, 364 P.2d 308, 310.) If then, petitioners have invoked the proper procedure, we turn to the substantive issue they have thereby presented.

The test to be applied to the resolution of the precise issue involved lies in section 2016, subdivision (b), of the Code of Civil Procedure and in the exhaustive opinions in Greyhound Corp. v. Superior Court (1961) 56 A.C. 353, 15 Cal.Rptr. 90, 364 P.2d 266 and the accompanying cases. The cited section provides: '(b) Unless otherwise ordered by the court as provided by subdivision (b) or (d) of Section 2019 of this code, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. All matters which are privileged against disclosure upon the trial under the law of this State are privileged against disclosure through any discovery procedure.'

Greyhound tells us that we must determine whether petitioners' questions pertained to matters which were 'relevant to the subject matter involved in the pending action' (p. 388, 15 Cal.Rptr. p. 95, 364 P.2d p. 271) and whether "the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence" (p. 389, 15 Cal.Rptr. p. 95, 364 P.2d p. 271); that, in so doing, we must construe the statute 'liberally in favor of disclosure unless the request is clearly improper * * *.' (Greyhound Corp. v. Superior Court, supra, 56 A.C. 353, 375, 15 Cal.Rptr. 90, 100, 364 P.2d 266, 276.)

The liberal breadth of such construction finds no limitation here in two possible narrowing limitations. First, although plaintiff could have moved to limit the taking of the deposition pursuant to Code of Civil Procedure section 2019, subdivision (b), or (d), he did not do so; we therefore do not proceed under those cited sections but under the general aegis of Code of Civil Procedure section 2034, subdivision (a). Second, the form of the motion does not confine us to the restricted ground of whether petitioners' questions related only to the issues of the litigation instead of to the wider ground of its subject matter. It is true that the motion asserted 'that such questions are relevant to the issues herein' only, and the trial court then would have been justified in deciding the motion exclusively upon the specific grounds proffered. (Taliaferro v. Riddle (1959) 167 Cal.App.2d 567, 570, 334 P.2d 950; Castagnoli v. Castagnoli (1954) 124 Cal.App.2d 39, 41, 268 P.2d 37.) Petitioners, however, went further: they urged that the answers 'should be required for the purpose of discovery * * *.' Nor does plaintiff urge this point as to the possible narrow view of the motion; plaintiff and petitioners apparently concur in plaintiff's statement in his memorandum: 'The question, therefore, to be determined in this matter is whether the information sought to be elicited from real party in interest was, in fact, relevant to the subject matter of the pending action, and not otherwise privileged.'

We turn to each category of questions:

1. Questions concerning plaintiff's failure to file income tax returns for 1959 and 1960.

While plaintiff testified that he did not file any income tax returns for 1959 and 1960, he refused to answer the question, 'What was the reason for your not filing any income tax return for 1959 and '60?' Although plaintiff now claims that his testimony as to his reason for his failure to file the tax return constituted a privileged matter, we believe that, in the first place, plaintiff cannot properly claim such privilege in a state court, and, second, assuming the privilege were available to him, he has waived it.

Plaintiff apparently predicates the privilege upon the possible violation of the federal statute, since he states that '[f]ailure to file an income tax return * * * is of no criminal consequence unless the income of the party failing to so file is over $600.00 per year.' The California statute, of course, requires a return only if the income of a single person reaches $1,500 per year (Rev. & Tax.Code, § 18401); the federal income tax return for the single person must be filed if his income exceeds $600 (U.S. Int.Rev.Code, § 6012, 26 U.S.C.A. § 6012).

The United States Supreme Court in Knapp v. Schweitzer (1958) 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393 held that a witness who secures immunity from the state against state prosecution cannot successfully assert in a state proceeding the privilege against self-incrimination on the ground that his testimony would subject him to federal prosecution. Mr. Justice Frankfurter, speaking for the court, said: 'In construing the Fifth Amendment and its privilege against self-incrimination, one must keep in mind its essential quality as a restraint upon compulsion of testimony by the newly organized Federal Government at which the Bill of Rights was directed, and not as a general declaration of policy against compelling testimony. It is plain that the amendment can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole--although deeply valuable--purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth.' (Pp. 379-380, 78 S.Ct. p. 1308.) As Witkin points out, 'This principle has been applied: * * * (2) To deny a claim of privilege in a state court, where the danger is only of prosecution in another state or under federal law.' (Witkin, Calif. Evid., § 468, pp. 521, 522. See Jack v. Kansas (1905) 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234; Wigmore on Evidence, § 2258, pp. 342, 345.)

Even assuming, however, that the privilege against federal prosecution could be invoked in the state court, we believe plaintiff has waived it in the present case by voluntarily disclosing part of the subject matter. Since the...