Unger v. Los Angeles Transit Lines

• Decision Date: 18 May 1960
• Citation: 180 Cal.App.2d 172,5 Cal.Rptr. 71
• Court: California Court of Appeals Court of Appeals
• Parties: Ruth UNGER, Plaintiff and Respondent, v. LOS ANGELES TRANSIT LINES, John Heprick, Defendants. Los Angeles Transit Lines, a corporation, Appellant. Civ. 24317. . Division 2, California

Page 71

5 Cal.Rptr. 71

180 Cal.App.2d 172

Ruth UNGER, Plaintiff and Respondent, v. LOS ANGELES TRANSIT LINES, John Heprick, Defendants.

Los Angeles Transit Lines, a corporation, Appellant.

Civ. 24317.

District Court of Appeal, Second District. Division 2, California.

May 18, 1960.

Hearing Denied June 14, 1960.

Frank Alef, Los Angeles, for plaintiff-respondent.

David S. Smith, Los Angeles, for defendant-appellant.

PER CURIAM.

Appellant raises upon petition for rehearing the claim that 'The action of the Superior Court in striking the answer of defendants and entering their default was wholly violative of decisions of the United States Supreme Court on this subject,' the argument being that this procedure amounted to a denial of due process. Counsel cites the cases of Societe Internationale, etc. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255, and Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215.

Societe Internationale is clearly distinguishable upon its facts, for the party there subjected to sanctions in the lower court was unable to make the production of the required documents. But Hovey v. Elliott holds that it is a denial of due process to punish a party for contempt by striking his answer from the files and rendering a default judgment against him where the object of the procedure is merely that of punishment.

Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 349, 29 S.Ct. 370, 53 L.Ed. 530, 544, draws a clear distinction between a case wherein a default is entered by way of mere penalty for past persistence in refusal to make disclosure and one wherein an order is made as a means of compelling discovery.

4 Moore's Federal Practice (2d Ed.) § 37.03, page 2805, speaking of the federal counterpart of our discovery statute, summarizes the effect of the authorities, saying: 'In its Note to Rule 37 the Advisory Committee points out that a distinction must be made between the justifiable use of orders of this sort as a means of compelling the production of evidence, and their unjustifiable use for the mere purpose of punishing for contempt. The two landmark cases on this question are Hammond Packing Co. v. Arkansas, decided by the Supreme Court in 1909, and the Court's earlier decision in Hovey v. Elliott. The Hovey case establishes that it is a denial of due process of law to punish a party for contempt by striking his answer from the files and rendering a default judgment against him. The Hammond case, however, makes it clear that a defendant's answer may be stricken and default judgment entered for failure to secure attendance of witnesses and to produce documents; the Court's theory was that 'the preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense.' In most cases there will be no difficulty in determining which of these two decisions is controlling.'

In an annotation of the subject 'Due process as affecting court's power to render judgment in civil case against party for failure to obey court order-...