Rosen v. Superior Court for Los Angeles County

• Decision Date: 02 September 1966
• Citation: 244 Cal.App.2d 586,53 Cal.Rptr. 347
• Court: California Court of Appeals
• Parties: AI ROSEN, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; LIPPERT INCORPORATED, a California corporation, Real Party in Interest. Civ. 30776.

Page 347

53 Cal.Rptr. 347

244 Cal.App.2d 586

AI ROSEN, Petitioner, v.The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, RespondentLIPPERT INCORPORATED, a California corporation, Real Party in Interest.

Civ. 30776.

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

Sept. 2, 1966.

Hearing Denied Oct. 26, 1966.

J. Frederick Rosen, Coachella, and James A. Withers, Los Angeles, for petitioner.

No appearance for respondent.

Prinzmetal & Maizlish and Leonard Maizlish, Beverly Hills, for real party in interest.

McCOY, Justice pro tem.

In an action entitled Lippert Incorporated v. Al Rosen, numberWEC 5920, pending inthe respondentcourt, the court denied the motion of defendant Rosen for an order imposing sanctions pursuant to Code of Civil Procedure, section 2019, subdivision (g).Rosen has petitioned this court for a writ of mandate commanding the respondentcourt to desist from the trial of that action until further order of this court and commanding the respondentcourt to impose sanctions against plaintiff according to law.We issued an alternative writ on petitioner's showing of probable abuse of discretion by the respondentcourt.(West Pico Furniture Co. v. Superior Court, 56 Cal.2d 407, 415, 15 Cal.Rptr. 119, 364 P.2d 295.)

THE FACTS

In October 1964the plaintiff, real party in interest here, filed its complaint for damages based on alleged fraud and breach of contract by defendant Rosen, petitioner here.The gist of the complaint is that in May 1964petitioner, herein referred to as Rosen, executed an 'ASSIGNMENT OF ALL RIGHTS' to the real party in interest, herein referred to as Lippert, whereby he sold and transferred to Lippert a certain original story and screenplay entitled 'TROUBLED WATERS,' for which Lippert paid Rosen $5,000.It is alleged that Rosen thereby represented to Lippert that he was the sole owner of said work, and that he had not theretofore granted any rights therein to anyone, whereas, in fact, Rosen was not the sole author and had previously executed an assignment of his rights in the work to another party, and that Rosen's representations were false and had been made for the purpose of inducing Lippert to purchase the work and to produce a motion picture based thereon.By reason thereof, Lippert sought general damages in the sum of $100,000 and exemplary damages in the sum of $250,000.

The action was first set for trial on April 18, 1966.On April 20 it was continued to July 6, 1966.After the continuance was granted, Lippert's attorneys learned that one Hannah Fisher, a material witness living in New York, would be unable to be present at the trial on July 6.They therefore obtained a commission to take her deposition in New York to be used as evidence in support of Lippert's case.The order for the issuance of the commission was made on May 27, and on the same day Lippert's attorneys served notice on Rosen that the deposition would be taken on June 23, 1966 at 2 p.m. Eastern Daylight Time 'in the offices of Englander and Englander, 250 West 57th Street, New York,' on oral interrogatories.Pursuant to said notice J. F. Rosen, petitioner's attorney, traveled to New York, only to learn on June 23 that the taking of the deposition had been postponed by the New York attorney employed by Lipper to take the deposition, without notice to Rosen or to his attorney.

On his return to California, Rosen's attorney noticed a motion in the respondentcourt for an order imposing sanctions against Lippert and its attorneys pursuant to Code of Civil Procedure, section 2019, subdivision (g).The respondentcourt denied the motion on July 1, whereupon Rosen filed his petition now before this court.

The rather shabby treatment accorded to Rosen's attorney in this matter is disclosed by his declaration filed in support of his motion, a copy of which is attached to his petition here.This declaration shows without contradiction that in response to the notice to take Hannah Fisher's deposition, Rosen's attorney, who resides and has his office in Coachella, California, drove approximately 130 miles to the Los Angeles International Airport on Monday evening, June 20, 1966, and left that airport the next morning, flying directly to New York.Shortly before 2 o'clock on the afternoon of June 23, he arrived at the office of Englander and Englander, where he was met by one Isidore Englander, who told him he was the attorney for the witness.Englander then informed Rosen's attorney that one Harry B. Kurzrok had been engaged by Lippert to take the deposition, that the witness would not be present for the taking of her deposition at the time noticed, and that no subpoena compelling her attendance had been served on her.Englander then called Kurzrok, and Rosen's attorney talked with him over the telephone.During that conversation Kurzrok stated that no subpoena had been served on the witness; that he and Englander had agreed to take the deposition on June 27, but that they had not given anyone notice of the change; that they intended to take the deposition on June 27 without stipulation of the parties or without court order and that he(Kurzrok) would obtain a court order requiring Rosen's attorney to remain in New York until then.Rosen's attorney told Kurzrok he would remain in New York until June 27 for the deposition if he were reimbursed for all reasonable expenses, including attorney's fees, caused by the delay, but Kurzrok refused to agree to make any such payments.Rosen's attorney thereupon returned to California.

The allegations of the declaration filed by Rosen's attorney in support of the motion are not only uncontradicted.In the main they are confirmed by the unsworn statement written and signed by I. Englander, a copy of which was submitted to the respondentcourt with the declaration of Rosen's attorney.They are also supported in several particulars by the declaration of Leonard Maizlish, one of Lippert's attorneys of record, filed in opposition to Rosen's motion.It specifically appears from both Englander's statement and Maizlish's declaration that the continuance of the deposition was agreed on by Englander and Kurzrok on June 22 at the request of the witness.Other allegations of Maizlish's completely unredeeming declaration will be noted below.

THE DISCRETION OF THE TRIAL COURT

'A deposition is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine.'(Code Civ.Proc., § 2004;People v. Hjelm, 224 Cal.App.2d 649, 654--655, 37 Cal.Rptr. 36.)A party to a pending action may take testimony by deposition upon oral examination for use as evidence as well as for the purpose of discovery.(Code Civ.Proc., § 2016, subd. (a).)At the trial a deposition may only be used 'against any party who was present or represented at the taking of the deposition or who had due notice thereof.'(Code Civ.Proc., § 2016, subd. (d).)The procedure for the taking of a deposition for the purpose of discovery or for use as evidence is the same.Accordingly, the right of a party to take a deposition for any purpose is conditioned upon his giving notice in writing to every other party to the action of the time and place for the taking of the deposition, whether it is to be taken within this state (id., § 2019, subd. (a)), or out of this state (id., § 2024).

By adopting sections 2016 through 2035 of the Code of Civil Procedure, the Legislature provided 'streamlined and less burdensome mechanics for the actual noticing and taking of depositions both in and out of the state, and upon either oral examination or written interrogatories.'At the same time it was aware of the necessity for new methods of controlling abuse which did not exist before.(Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 372--373, 15 Cal.Rptr. 90, 97, 364 P.2d 266, 273.)To that end the trial court is authorized to make appropriate orders for the protection of both parties and deponents either before the taking of a deposition (Code Civ.Proc., § 2019, subd. (b)(1)), or while the deposition is being taken (Code Civ.Proc., § 2019, subd. (d)).The power to prevent abuse which is bestowed on the trial court by these provisions 'is the power to exercise discretions based upon the factual showing made.When the record indicates facts on which the court exercised its discretion, that exercise will not be disturbed on appeal; when the facts are undisputed, or there is but one reasonable interpretation thereof, the question ceases to be fact, and is one of law.'(Greyhound Corp. v. Superior Court, supra, at p. 383, 15 Cal.Rptr. at p. 104, 364 P.2d at p. 280.)

The trial court also has power, in the exercise of its discretion, to impose sanctions against a party who abuses his right to take a deposition (Code Civ.Proc., § 2019, subd. (g)), or against a party or his attorney, or both, when the party willfully fails to appear for the taking of his deposition (Code Civ.Proc., § 2034, subd. (d)).¹

Section 2019, subdivision (g), Code of Civil Procedure provides that 'If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice,' or 'If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney's fees.'These provisions are identical to those of subdivision (g) of rule 30,Federal Rules of Civil Procedure, and are applicable in all cases regardless of the purpose for which the deposition is being...