Twin Lock, Inc. v. Superior Court In and For Los Angeles County

• Decision Date: 09 October 1959
• Citation: 344 P.2d 788,52 Cal.2d 754
• Court: California Supreme Court
• Parties: TWIN LOCK, INCORPORATED (a Corporation), Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF LOS ANGELES, Respondent; Albert Agron et al., Real Parties in Interest. L. A. 25501.

Page 788

344 P.2d 788

52 Cal.2d 754

TWIN LOCK, INCORPORATED (a Corporation), Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF LOS ANGELES, Respondent;

Albert Agron et al., Real Parties in Interest.

L. A. 25501.

Supreme Court of California, In Bank.

Oct. 9, 1959.

W. Claude Fields, Jr., Gibson, Dunn & Crutcher, Frederic H. Sturdy and John L. Endicott, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, William E. Lamoreaux, Asst. County Counsel, and Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondent.

Maxwell E. Greenberg, Norbert A. Schlei, O'Melveny & Myers and Philip F. Westbrook, Jr., Los Angeles, for real parties in interest.

GIBSON, Chief Justice.

Twin Lock, Incorporated, seeks a writ of prohibition to prevent the imposition of sanctions against it by respondent court because certain officers and directors of the corporation who are residents of the state of New York failed to appear in response to a notice for the taking of their depositions pursuant to provisions of the Code of Civil Procedure enacted in 1957 with respect to discovery. Stats.1957, ch. 1904, § 3; Code Civ.Proc. § 2016 et seq.

The action commenced by Twin Lock in Los Angeles County charged defendants Agron, Frank, and Clifford, real parties in interest herein, with violation of a contract. Defendants filed an answer and a cross-complaint and subsequently gave notice that they would take the depositions of the officers and directors in Los Angeles at certain specified times. The notice was apparently based upon subdivision (a)(1) of section 2019 of the Code of Civil Procedure which, as it then read, provided that a party desiring to take the deposition of any person upon oral examination should give notice in writing to every other party to the action, stating the time and place for the taking, and that in the case of depositions of a party to any civil action or of a person for whose immediate benefit the action is prosecuted or defended, or of any one who at the time of the taking of the deposition is an officer, director, or managing agent of any such party, the service of a subpena upon any such deponent is not required if proper notice of the taking is given. ¹

The court denied a motion by Twin Lock to vacate the notice for the taking of depositions and ordered that they be taken in Los Angeles within a limited time on days to be agreed upon by counsel. Twin Lock then made a motion to change the place of taking the depositions to the city of New York on the ground that the order requiring the witnesses to appear in Los Angeles for that purpose was contrary to law and in excess of the jurisdiction of the court. ² This motion was denied.

In the meantime defendants made a motion asking the court to impose sanctions against Twin Lock under subdivision (d) of section 2034 of the Code of Civil Procedure, which provides that if a party or an officer, director, or managing agent of such party, wilfully fails to appear before the officer who is to take the deposition, after being served with a proper notice, the court on motion and notice may strike out all or part of any pleading of that party, or dismiss the action or proceeding, or enter a judgment by default against that party. The court continued defendants' motion in order to allow Twin Lock an opportunity to produce the witnesses in Los Angeles, thus indicating that sanctions would be imposed if the witnesses did not appear.

Prohibition is available if the imposition of sanctions by respondent court under the circumstances involved here would constitute an excess of the power of the court as defined by statute. City of Los Angeles v. Superior Court, 51 Cal.2d 423, 429, 333 P.2d 745; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 287 et seq., 109 P.2d 942, 132 A.L.R. 715.

The disposition of this proceeding depends upon the applicability of section 1989 of the Code of Civil Procedure, which provides: 'A witness is not obliged to attend as a witness before any court, judge, justice, or any other officer, out of the county in which he resides, unless the distance be less than one hundred fifty miles from his place of residence to the place of trial.' Except for several changes in the prescribed distance, which was originally 30 miles, the statute remains as it was enacted in 1872. Twin Lock asserts that under the plain meaning of section 1989 no form of compulsion, including the use of sanctions against a party, may be use of sanctions to compel the New York residents to come to California and that the discovery provisions adopted in 1957 were not intended to limit the operation of the statute. Defendants contend that section 1989 applies only to witnesses whose attendance may be compelled by subpena and whose refusal to respond may be punished as contempt. They also assert that subdivision (a) of section 2019 and subdivision (d) of section 2034, rather than section 1989, govern where, as here, the attendance of a witness is sought to be compelled by the imposition of sanctions upon a party instead of by proceedings against the witness, and that the imposition of such sanctions is authorized by these subdivisions.

The word 'witness' in section 1989 includes a prospective witness who is a party or who is a director, officer, or managing agent of a party. The statute contains no language limiting its application to cases involving a subpena or contempt proceedings, and the word 'obliged' as used in the section is sufficiently broad to preclude use of indirect as well as direct methods of compelling a witness to attend. There can be no doubt that a witness, such as each of the persons whose depositions are sought here, who is a director, officer, or managing agent of a party to an action, will be under considerable coercion to attend whenever his corporate employer is placed under the severe sanctions authorized by section 2034. For example, a witness who refused to obey a reasonable request or command of his employer to attend the taking of a deposition would risk loss of his position or other disciplinary action. The imposition of sanctions on the party would thus cause the witness to be 'obliged' to attend, within the meaning of the section. While it is true, as pointed out by defendants, that the other sections of the chapter in which section 1989 is located relate specifically to subpenas or their enforcement, the chapter is entitled 'Means Of Production' of evidence and properly contains a limitation upon the distance which a court may directly or indirectly compel a witness to travel. Code Civ.Proc. part IV, tit. III, ch. II.

Since section 1989 is by its terms applicable to the New York residents involved here, defendants' position may be sustained only upon the theory that the enactment in 1957 of sections 2019 and 2034 amounted to a partial implied repeal of section 1989, which, as we have seen, has been a part of our statutes since 1872. We find nothing in the discovery and deposition provisions adopted in 1957 which discloses that the Legislature intended such a substantial departure from the long-established practice of limiting the territorial scope of the powers of a court to compel the attendance of witnesses. It should be noted in this connection that, while section 1989 was amended in 1957 during the same session of the Legislature at which the discovery provisions were enacted, no change was made in the language pertinent here. The fact that subdivision (a)(1) of section 2019 provided that the notice for the taking of depositions 'must be at least 10 days, adding also one day for every 100 miles of the distance of the place of examination from the residence of the person to whom the notice is given,' is not sufficient, in our opinion, to justify a conclusion that the Legislature thereby contemplated that witnesses could be compelled to attend the taking of depositions at distances greater than the maximum set forth by section 1989.

A very persuasive factor with respect to the intention of the Legislature is found in an amendment to section 2019, effective September 18, 1959, which was approved by the Governor on July 6 after the orders involved here were made. Stats.1959, ch. 1590. Subdivision (a)(4) of the amended section provides that a notice to take the deposition of a person who is a party or who at the time of the taking is an officer, director, or managing agent of a party, cannot require the attendance of such person at a place more than 150 miles from his residence unless the party desiring to take the deposition first obtains an order from the court pursuant to subdivision (b)(2) of the section. ³ The first sentence of subdivision (b)(2) of the amended section provides: 'Not...