Southern California Edison Co. v. Superior Court

• Decision Date: 30 August 1972
• Citation: 7 Cal.3d 832,500 P.2d 621,103 Cal.Rptr. 709
• Court: California Supreme Court
• Parties: , 500 P.2d 621 SOUTHERN CALIFORNIA EDISON COMPANY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Richard CARLSON et al., Real Parties in Interest. L.A. 30000. In Bank

Page 709

103 Cal.Rptr. 709

7 Cal.3d 832, 500 P.2d 621

SOUTHERN CALIFORNIA EDISON COMPANY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Richard CARLSON et al., Real Parties in Interest.

L.A. 30000.

Supreme Court of California,

In Bank.

Aug. 30, 1972.

Rollin Woodbury, Chase, Rotchford, Drukker & Bogust, David Clark and William C. Falkenhainer, Los Angeles, for petitioner.

No appearance for respondent.

Greenberg & Glusker and Michael K. Collins, Los Angeles, for real parties in interest.

David B. Gold, San Francisco, Marshall B. Grossman, Schwartz & Alschuler, Los Angeles, Stephen Z. Meyers and Alan Goldhammer, Los Angeles, as amici curiae on behalf of real parties in interest.

SULLIVAN, Justice.

Petitioner Southern California Edison Company seeks a writ of prohibition, mandate or certiorari to compel respondent superior court to vacate a protective order made during the course of discovery proceedings. (Code Civ.Proc., § 2019, subd. (b)(1).) ¹

Briefly stated, the pertinent facts are as follows. Real parties in interest (hereafter 'named plaintiffs') ² on behalf of themselves and all other persons similarly situated (hereafter 'unnamed plaintiffs') commenced against petitioner Southern California Edison Company (hereafter 'defendant') the underlying class action for damages for trespass and nuisance, and for injunctive relief. ³

The complaint in essence alleged that the named and unnamed plaintiffs comprised a class of approximately 1,500 persons who owned boats which were moored in King Harbor in Redondo Beach; that in the course of operating a plant for generating electrical power, defendant discharged great quantities of particulate matter and pollutants which showered upon plaintiffs' boats and damaged them; and that the issue whether defendant's acts constituted trespass or nuisance or both was one of common and general interest to all members of the class. Plaintiffs prayed for compensatory damages in the sum of $5,000,000; exemplary damages in the sum of $5,000,000; and for a permanent injunction. Defendant's answer denied all material allegations of the complaint and set forth certain affirmative defenses.

Edison commenced discovery proceedings. The named plaintiffs supplied defendant with a list of the names, last known addresses, and telephone numbers of the approximately 500 unnamed plaintiffs who were members of the King Harbor Boat Owners Association. From this list defendant selected 20 names at random and noticed the taking of their depositions. Defendant took the position that the service of subpoenas on these deponents was not required and that, in accordance with section 2019, subdivision (a)(4), written notice served upon the attorney for the named plaintiffs was sufficient to compel attendance, since the deponents were persons for whose immediate benefit the action was being prosecuted.

Although they disagreed, the named plaintiffs upon being served with notices to take depositions, attempted to cooperate in the production of the deponents. After extensive efforts, the attorney for the named plaintiffs succeeded in producing only two of the deponents. The rest were unable to attend, or could not be contacted, or refused to appear.

Defendant then noticed the taking of depositions of 20 more persons selected at random from the roster of the Boat Owners Association. According to plaintiffs' attorney, defendant's attorneys then announced their intention to exclude from the class, pursuant to section 2034, subdivision (d), all persons who failed to appear.

Plaintiffs then moved for a protective order (§ 2019, subd. (b)(1)) to prevent Edison's assertedly improper discovery, on the ground that the order was necessary to protect plaintiffs, their attorneys, and the members of the class from 'annoyance, embarrassment, and oppression.' The motion requested an order that only the five named plaintiffs were persons described by section 2019, subdivision (a)(4), as those who could be compelled to attend depositions on mere written notice to the opposing counsel.

After a hearing, the trial court granted the motion in part and denied it in part. A protective order was issued on the ground that it was 'unfair' to prospective class members and to the named plaintiffs' counsel to require the latter to produce for deposition anyone other than the named plaintiffs. The court quashed defendant's notices of deposition but held that defendant could renotice depositions if subpoenas were issued in the usual form. ⁴ Defendant then filed the instant petition for an extraordinary writ in the Court of Appeal which issued an alternative writ of mandate and thereafter a peremptory writ. We granted a hearing.

The crucial question is whether the trial court abused its discretion by issuing the protective order. The parties agree that the answer to this question depends in turn on the resolution of a problem of statutory interpretation of section 2019, subdivision (a)(4). That section provides in pertinent part: 'In the case of depositions of a person For whose immediate benefit an action or proceeding is prosecuted or defended . . . the service of a subpoena upon any such deponent is not required if proper notice of the taking of such deposition is given to the attorney of the party prosecuting or defending the action or proceeding for the immediate benefit of the deponent or to such party, if he has no attorney.' (Italics added.) The issue posed herein is whether Unnamed plaintiffs in a class action are 'person(s) for whose immediate benefit an action or proceeding is prosecuted.' If they are such persons, within the meaning of the portion of the statute just quoted, then the defendant in the class action may take their depositions on mere notice to the attorney for the named plaintiffs, Subject to the limitations of section 2019, subdivison (b)(1); if not, the defendant must serve subpoenas upon them.

Defendant contends that we should deem the unnamed plaintiffs to be persons 'immediately benefited' by the prosecution of the action under the test set forth in Waters v. Superior Court (1962) 58 Cal.2d 885, 897--898, 27 Cal.Rptr. 153, 377 P.2d 265. In that case, which involved an attempt to take the deposition of Howard Hughes merely by serving written notice upon counsel for the codefendant Hughes Tool Co. (of which Hughes was the sole shareholder), we adopted the New York characterization of a 'person for whose immediate benefit the action or proceeding is prosecuted.' We said that such a person is one 'who would have an immediate right to the amount recovered or some portion of it as soon as it was recovered by the nominal plaintiff. (Citations.)' (Id. at p. 897, 27 Cal.Rptr. at p. 159, 377 P.2d at p. 271.) Defendant points out that in the case at bench the unnamed plaintiffs would likewise have an Immediate right to share pro rata in any judgment awarded to plaintiffs; such is an essential recognition of the representative nature of the class action, which the named plaintiffs have a fiduciary obligation to continue until success is obtained for All. (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871, 97 Cal.Rptr. 849, 489 P.2d 1113.) Defendant therefore argues that the unnamed plaintiffs would be persons immediately benefited by the prosecution of the action under the Waters holding; that section 2019, subdivision (a)(4) contains no exception for class actions; that no undue burden will be placed on the named plaintiffs by requiring them to produce the unnamed plaintiffs for deposition; and that Edison legitimately needs to take the depositions of the unnamed plaintiffs in order to determine whether the issues of law or fact common to the class members predominate over those affecting only individual members.

The named plaintiffs make in essence three points in reply to these arguments and in support of their basic contention that the unnamed plaintiffs should not be considered persons 'for whose immediate benefit (the) action or proceeding is prosecuted,' as that phrase is used in section 2019, subdivision (a)(4).

First, they urge that Waters interpreted the 'immediate benefit' language of section 2019, subdivision (a)(4) in the context of a person who prosecutes or defends an action purely as a nominal party, for the immediate benefit of another, in the traditional sense. They argue that the Waters interpretation need not be controlling in the class action context. Second, they contend that the reasons supporting this phraseology of section 2019, subdivision (a)(4) have little force in the class action setting. It is urged that the class action defendant will obtain his most useful discovery from the named plaintiffs and little of value from the unnamed plaintiffs, while the reverse is true in the ordinary representative situation. In the latter situation, so the argument runs, the defendant ordinarily must 'go beyond' the nominal plaintiff and take the deposition of the person immediately benefited by the prosecution of the action who usually has knowledge of its underlying facts. Furthermore, it is argued that defendant, having obtained the membership list of the association, has just as much information about the class as the named plaintiffs and is just as capable as they of securing the attendance of the unnamed plaintiffs for depositions. Third, and most importantly, the named plaintiffs contend that the allowance of merely a notice procedure for the taking of depositions will destroy the effectiveness of the class action as a litigation tool and as an economic method of adjudication.

It is not possible to interpret the pertinent language of section 2019, subdivision (a)(4) in the class action context by resort to legislative history, since there is none ⁵ which sheds light on the meaning of these words. Nor do we find this language in any of the pertinent Federal Rules of Civil Procedure (either concerning class action specifically (...