Rosemont v. Superior Court of Los Angeles County

• Decision Date: 30 January 1964
• Citation: 388 P.2d 671,36 Cal.Rptr. 439,60 Cal.2d 709
• Court: California Supreme Court
• Parties: , 388 P.2d 671 Conrad D. ROSEMONT, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Charles TURNER et al., Real Parties in Interest. L. A. 27606.

Page 439

36 Cal.Rptr. 439

60 Cal.2d 709, 388 P.2d 671

Conrad D. ROSEMONT, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Charles TURNER et al., Real Parties in Interest.

L. A. 27606.

Supreme Court of California, In Bank.

Jan. 30, 1964.

Rehearing Denied Feb. 26, 1964.

McCutchen, Black Harnagel & Shea, G. William Shea, Los Angeles, and William W. Schwarzer, San Francisco, for real parties in interest.

TRAYNOR, Justice.

Petitioner seeks a writ of prohibition or other appropriate writ to prevent respondent court from enforcing a discovery order in an action brought by petitioner as plaintiff against defendants, the real parties in interest herein.

In October 1960 plaintiff brought an action for damages against defendant Charles Turner for the breach of an oral contract alleged to have been entered into in 1957, reaffirmed in 1959, and breached on and after July 1, 1960. He also sought damages from other defendants for inducing breach of the contract and an accounting by all defendants. Through new counsel plaintiff filed an amended complaint in August, 1962. The parties agreed that plaintiff's deposition should be taken commencing on October 1. He appeared and testified for five days. On October 2 the parties stipulated that defendant Turner's deposition should be taken on October 24. On October 5 defendants moved for an order pursuant to Code of Civil Procedure, section 2031 to require plaintiff to produce recordings he had made of conversations with Turner, other defendants, and employees of other defendants. In the event their motion for production should be denied, defendants moved in the alternative for a protective order pursuant to subdivision (b)(1) of section 2019 of the Code of Civil Procedure to stay the taking of Turner's deposition pending application for a writ of mandate to require granting of their motion to produce. In response plaintiff filed a motion for a protective order to require Turner and the other witnesses to give their depositions before he produced the recordings he had of conversations with them.

On October 15 the trial court stayed the taking of Turner's deposition pending its ruling on the motions before it. On December 7 the trial court entered an order in which it stated that defendants' description of the matters sought to be inspected was inadequate and that on the record before it, defendants' motion should be denied. It ruled, however, that 'in the interest of conserving the court's time in disposing of the matter and in order to avoid the necessity for additional discovery proceedings and further motions, it is ordered that within ten days from the date of this order plaintiff will serve and file his own affidavit or declaration, identifying factually and particularly as to dates and parties present, all recordings of (a) conversations between plaintiff and any defendant or an employee of any defendant, and (b) of any statements by any defendant, whether or not persons other than plaintiff were present at the time of or participated in the conversation or heard the statement. * * * Upon the filing of such affidavit or declaration the court will determine defendant's pending motion for an order for inspection and plaintiff's pending motion for a protective order.' In response to this order, plaintiff filed a declaration listing by parties and dates 39 conversations he had recorded. Most of these conversations were between plaintiff and Turner, but some were between plaintiff and other defendants or employees of other defendants. They occurred from September 8, 1960 to October 31, 1960.

On January 16, 1963 the trial court filed its memorandum and order setting forth its reasons for concluding that before plaintiff could take the depositions of the parties to the respective conversations, defendants were entitled to inspect and transcribe the recordings. On March 27, 1963, the court entered its order setting forth in detail how its decision of January 16 should be carried out.

On May 15, 1963 plaintiff filed a petition for a writ of prohibition or other appropriate writ in the District Court of Appeal, Second Appellate District, and on June 12, 1963 Division 1 of that court issued an alternative writ of prohibition. Thereafter it filed its decision granting a peremptory writ, and this court then granted defendants' petition for hearing.

Since the District Court of Appeal issued an alternative writ and the case has been fully briefed on the merits, no purpose would be served by reconsidering the question whether the trial court's order was an appropriate one for review by extraordinary writ. (See Waters v. Superior Court, 58 Cal.2d 885, 890, 27 Cal.Rptr. 153, 377 P.2d 265; Oceanside Union School Dist. of San Diego County v. Superior Court, 58 Cal.2d 180, 185, 23 Cal.Rptr. 375, 373 P.2d 439, fn. 4; Hagan v. Superior Court, 53 Cal.2d 498, 501-502, 2 Cal.Rptr. 288, 348 P.2d 896.) The lengthy history of this litigation, however, demonstrates the need for caution in granting interim review of discovery orders, lest the basic purpose of pretrial discovery to expedite litigation be thwarted. (Hagan v. Superior Court, 57 Cal.2d 767, 770, 22 Cal.Rptr. 206, 371 P.2d 982.)

In the present case there is no dispute over plaintiff's right to take the depositions of Turner and other defendants and defense witnesses before trial. There is no dispute over defendants' right to secure production of the recorded conversations before trial. The only dispute is over the timing of these discovery procedures.

Plaintiff contends that the trial court did not have jurisdiction to condition his right to take depositions on his prior production of the recordings, and that even if it had jurisdiction to enter the order it did, it abused its discretion in doing so.

Subdivision (b)(1) of section 2019, ¹ which is made applicable by reference to section 2031, expressly authorizes the trial court for goods cause to regulate the timing of the taking of depositions and to make any 'order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.' Both sides invoked the jurisdiction of the court to act under these provisions. Defendants sought production of the recordings before the date set for Turner's deposition or in the alternative a protective order to allow time to apply for an extraordinary writ. Plaintiff sought a protective order to delay production until after the depositions were taken.

Plaintiff contends, however, that the trial court had power only to grant or deny the motions before it; that it did not have power pending its decision on the motions to stay the taking of Turner's deposition or to order plaintiff to identify the recordings. The Legislature did not expressly empower a trial court to stay the taking of a deposition pending its decision on a motion for a protective order until it amended section 2019 in 1963. Even before the amendment, however, when a stay was necessary to enable the court properly to exercise its jurisdiction to rule on a motion for a protective order, it had inherent...