Trail v. Cornwell

• Decision Date: 31 October 1984
• Court: California Court of Appeals Court of Appeals
• Parties: Dorothy TRAIL, Plaintiff and Appellant, v. Holly A. CORNWELL et al., Defendants and Respondents. Civ. 22787.

Page 679

207 Cal.Rptr. 679

161 Cal.App.3d 477

Dorothy TRAIL, Plaintiff and Appellant, v. Holly A. CORNWELL et al., Defendants and Respondents.

Civ. 22787.

Court of Appeal, Third District, California.

Oct. 31, 1984.

Certified for Partial Publication.

[161 Cal.App.3d 480] Maxim N. Bach, Oroville, for plaintiff and appellant.

Thomas M. Buckwalter, Quincy, for defendants and respondents.

SIMS, Associate Justice.

Dorothy Trail (hereafter appellant) sued Holly Cornwell, Roy Smith, Virginia Smith, Stanley Young, Roger Settlemire, Douglas Thomas, Gerald Flanagan, James Schaber, Peter Hentshel and Plumas County. On January 24, 1983, the trial court granted the motion of defendants Cornwell, Smith and Smith (hereafter respondents) for discovery sanctions and entered judgment of dismissal. (Code Civ.Proc., § 2034, subds. (b)(2)(C) and (d).) ¹ Appellant appeals contending: (1) respondents "had no legal standing" to move for dismissal as a discovery sanction because respondents' attorney never served upon appellant a notice of his substitution for respondents' previous attorney; (2) appellant was improperly required to use her single peremptory challenge against the first trial court judge and, consequently, was deprived of the opportunity peremptorily to disqualify a second judge who presided in this matter; and (3) in dismissing the complaint, the trial court erroneously relied on appellant's violation of a certain ex parte discovery order obtained in violation of appellant's rights to due process of law.

In an unpublished portion of this opinion, we reject appellant's first contention. We then conclude appellant waived any contention she was wrongfully forced to use a peremptory challenge by her failure to tender the issue to the trial court or apply to this court for a writ. However, we hold the sanction of dismissal of a complaint is authorized by section 2034 only in prescribed circumstances and the trial court erroneously relied on improper circumstances in dismissing the complaint. We therefore reverse the judgment of dismissal.

FACTUAL AND PROCEDURAL HISTORY

Defendants Settlemire, Thomas and Flanagan served interrogatories on appellant on December 3, 1981. Appellant served objections to those interrogatories by mail on January 8, 1982. Defendants made no motion to compel answers.

On December 11, 1981, attorney David Rush ² noticed the depositions of appellant, her husband and Cornwell for December 30, 1981, at 2, 3 and 3:30 p.m., respectively; the depositions "to continue from day to day until completed." On December 30, Maxim Bach, attorney for appellant, arrived about 45 minutes late for the depositions. Before Bach arrived, attorney Thomas Backwalter announced he was "substituting in" as attorney of record for respondents in place of attorney (and defendant) Peter Hentschel. Respondent Cornwell acknowledged and consented to Buckwalter's announcement. When Bach arrived he was advised of the substitution, although the record is unclear as to whether Bach was advised Buckwalter represented his clients for the purpose of the deposition Bach began questioning Cornwell, the first of the three witnesses to be deposed. His questioning continued until 5:00 p.m., when Bach announced he was leaving. Thereupon, the attorneys became involved in the sort of disagreement about the continuance of the depositions that makes most attorneys wish they had become accountants, engineers or zookeepers. Rush announced the depositions would continue the next morning, December 31, 1981. Bach insisted he was unavailable the next morning but would be available on January 4, 1982, provided Cornwell's deposition was concluded before commencement of Trail's. No agreement was reached.

only, or for all purposes. Bach stated he had no objection. ³

On the morning of December 31, 1981, without filing any papers in the action, Rush obtained a hearing in Plumas County Superior Court. Rush called Bach's office at about 9:45 a.m. on the 31st and left word the hearing would go forward at 11:00 a.m.

A reporter's transcript of those proceedings has not been included in the record in this appeal. The minute order recites that Rush testified, that a message was read indicating Bach could not attend, and that the clerk of the court made inquiries as to whether Bach had telephoned the court and reported that Bach had not. At the conclusion of the hearing the court ordered that the deposition of Cornwell be suspended until the depositions of Dorothy and John Trail were concluded. The court ordered those depositions to begin January 4, 1982, and to continue from day to day at Quincy until completed. Rush personally served this order on Bach that same day, December 31, 1981.

On the morning of January 4, 1982, Bach's secretary called Rush to tell him Bach would not be attending the deposition because the court's order of December 31 was invalid and because inclement weather made travel from Oroville to Quincy impossible. The depositions were then set unilaterally by defense counsel for January 5, 1982. Bach and his client failed to appear. Thereafter, the parties entered into various stipulations for the taking of the depositions at various times, but the depositions were never taken.

On February 23, 1982, appellant filed a statement of disqualification of Judge Janes, assigned, for cause and a declaration in support of same. ( § 170, subd. (c).)

On May 10, 1982, Judge Robert H. Kroninger, assigned by the Chairperson of the Judicial Council, denied appellant's motion to disqualify Judge Janes. (See fn. 4, post.) On June 23, 1982, appellant peremptorily disqualified Judge Janes pursuant to section 170.6. Judge Frank D. Francis was assigned to preside over the remainder of the lawsuit.

On June 7, 1982, respondents filed a motion to dismiss appellant's action as a discovery sanction. The motion was grounded on the same facts as those in a motion of defendants Settlemire, Thomas, Flannagan and Plumas County granted previously by Judge Janes on June 7, 1982. ⁴ Following a hearing, Judge Francis entered an order granting respondents' motion

                on September 7, 1982. 5  On January 24, 1983, the court entered judgment dismissing appellant's complaint. 6
                

DISCUSSION

I ^*

II

Appellant contends the order of Judge Francis granting respondents' motion to dismiss is void because she would have used a peremptory challenge to disqualify Judge Francis but could not do so because she was earlier improperly required to use her single peremptory challenge ( § 170.6) against Judge Janes. The record manifests no attempt or desire to disqualify Judge Francis. Appellant filed a statement of disqualification of Judge Janes for cause ( § 170) on February 23, 1982. In a prior appeal in this case this court concluded that Judge Janes was disqualified 10 days after that date for failure to answer the statement of disqualification in the time required by the statute. ( § 170, subd. (f).) We have no occasion to reexamine our conclusion.

A party is entitled to one peremptory challenge as its " 'ace in the hole' " (Pacific etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 80, 147 Cal.Rptr. 44); under proper circumstances the deprivation of this significant tactical advantage may be grounds for reversal. (See Bouchard v. Insona (1980) 105 Cal.App.3d 768, 774, 164 Cal.Rptr. 505; In re Jose S. (1978) 78 Cal.App.3d 619, 628, 144 Cal.Rptr. 309.

In the instant case, however, appellant waived any such claim by failing to tender the issue to Judge Francis or to seek extraordinary relief in this court.

When Judge Janes erroneously, albeit understandably, ⁷ continued to exercise jurisdiction in this case after failing to answer appellant's statement of disqualification, appellant could have sought a writ of mandate to compel his disqualification (Garcia v. Superior Court (1984) 156 Cal.App.3d 670, 680, 203 Cal.Rptr. 290; Pacific etc. Conference of United Methodist Church v. Superior Court, supra, 82 Cal.App.3d at pp. 78-79, 147 Cal.Rptr. 44) instead of using her peremptory challenge. By failing to tender this issue to Judge Francis or to seek the writ, appellant waived any claim she was wrongfully deprived of her peremptory

challenge. To hold otherwise would impermissibly permit a party to gamble without risk by allowing proceedings to continue to conclusion without objection, claiming reversible error only if the conclusion were unfavorable. (See, e.g., Lindemann v. San Joaquin Cotton Oil Co. (1936) 5 Cal.2d 480, 496, 55 P.2d 870; In re Christian J. (1984) 155 Cal.App.3d 276, 278-279, 202 Cal.Rptr. 54, and authorities cited therein.)

III

Next, appellant contends the trial court improperly relied on her violation of the trial court's order of December 31, 1981, in imposing sanctions. She argues the ex parte order deprived her of due process of law because it was made without notice to her. Because we find that the order was not one which, if disobeyed, would justify discovery sanctions under the applicable statutes, we do not address appellant's constitutional contention.

The court and respondents relied on section 2034, subdivisions (b)(2)(C) and (d), as authority to dismiss appellant's complaint. ⁸ Section 2034 provides "the exclusive mechanics for imposing sanctions for failure The court may not dismiss an action under subdivision (b) of section 2034 unless there has first been a refusal to obey an order described in section 2034. (Duggan v. Moss (1979) 98 Cal.App.3d 735, 742, 159 Cal.Rptr. 425.) Subdivision (b)(2) of section 2034 permits the court to dismiss an action as a sanction when "a party refuses to obey an order made under Sections [2034, subd. (a),] 2019, 2031, or 2032 ...." We examine the described provisions serially.

to comply with valid requests for discovery." (Lund v. Superior Court (1964) 61 Cal.2d 698, 712, 39 Cal.Rptr. 891, 394 P.2d 707, and see McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 290, 184...