Warford v. Medeiros

• Decision Date: 15 October 1984
• Citation: 207 Cal.Rptr. 94,160 Cal.App.3d 1035
• Court: California Court of Appeals Court of Appeals
• Parties: J. Albert WARFORD and Joanne Stevens, Plaintiffs and Appellants, v. Manuel Wayne MEDEIROS, Bernice Sanga Medeiros, and John Edward Medeiros, Defendants and Respondents. Sonny ARNOLD, Patrick Kelley Hawkins, Isaac Sanga, Sue Lynn Warford, John K. Lincoln, Robin Lincoln, and Anthony K. Kekona, Real Parties in Interest. A015612.

Page 94

207 Cal.Rptr. 94

160 Cal.App.3d 1035

J. Albert WARFORD and Joanne Stevens, Plaintiffs and Appellants, v. Manuel Wayne MEDEIROS, Bernice Sanga Medeiros, and John Edward Medeiros, Defendants and Respondents Sonny ARNOLD, Patrick Kelley Hawkins, Isaac Sanga, Sue Lynn Warford, John K. Lincoln, Robin Lincoln, and Anthony K. Kekona, Real Parties in Interest.

A015612.

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

Oct. 15, 1984.

Folger & Levin, San Francisco, for appellants.

Brian H. Getz, San Francisco, Brook Hart, Hart & Wolff, Eric A. Seitz, Honolulu, Hawaii, Edward F. Mason, Wailuku, Maui, Hawaii, John Rapp, Goodsill, Anderson, Quinn & Stifel, Honolulu, Hawaii, James Krueger, Wailuku, Maui, Hawaii, for respondents and real parties in interest.

Manuel Wayne Medeiros and John Edward Medeiros, Isaac Sanga, Patrick K. Hawkins, c/o Odette Hawkins, pro se.

KLINE, Presiding Justice.

This case raises questions concerning the conditions under which discovery may be compelled from unwilling non-party witnesses who invoke the Fifth Amendment privilege against self-incrimination.

On June 3, 1981, plaintiffs J. Albert Warford and Joanne Stevens filed an application for an order to show cause why Manuel Wayne Medeiros, Bernice Sanga Medeiros and John Edward Medeiros (hereinafter "non-party deponents") should not be required to provide deposition testimony and certain documents. (See Code Civ.Proc., § 2034.) Plaintiff's application was supported by an affidavit of John Rapp, their attorney in an action pending in the State of Hawaii. The affidavit stated that plaintiffs had filed a civil action in the State of Hawaii against seven named defendants and ten Does. Plaintiffs assertedly alleged in that action that the named defendants, together with the unnamed Does, had been involved in a conspiracy which led to the murders of Paul Warford and David Blue, sons of the plaintiffs, as well as a conspiracy to inflict harm on plaintiff J. Albert Warford. By their action in Hawaii plaintiffs sought to recover damages sustained as a result of the conspiracies and to impose a constructive trust upon those moneys that were acquired by the defendants as a result of their wrongful acts.

On January 7, 1981, the Hawaii Circuit Court issued a commission to take depositions of certain individuals in the State of California, including respondent non-party deponents. Thereafter, the non-party deponents were each individually served with a subpoena duces tecum requiring them to attend their respective depositions and produce specified documents.

On or about February 8, 1981, each of the non-party deponents appeared for deposition in San Francisco accompanied by their attorney, Brian H. Getz. Attorney Getz instructed his clients to state his or her name and age, but to refuse to answer any other questions propounded. Counsel further instructed his clients not to produce the documents specified in the various subpoenas duces tecum.

On June 3, 1981, the San Francisco Superior Court issued an order to show cause why an order should not be made compelling each of the non-party deponents to answer questions and produce the specified documents. The non-party deponents filed their opposition, claiming, inter alia, that they were in imminent danger of being investigated as alleged participants in a conspiracy under criminal investigation in Hawaii, and asserting their Fifth Amendment right not to testify against themselves. ¹ The only evidence to support this claim was a declaration by Attorney Getz that he had conferred with the non-party deponents prior to their depositions and had become familiar with the underlying aspects of the testimony they were requested to give; that said testimony, and all of it, could be construed to incriminate the deponents; and that for this reason he had instructed the deponents not to answer any questions other than to provide their names and ages and not to produce the documents sought.

On October 2, 1981, a minute order was filed in the San Francisco superior court action denying plaintiffs' application, with the exception that the non-party deponents were ordered to answer questions pertaining to their names, ages, addresses and places of work. In addition, plaintiffs' request for an in camera hearing on the self-incrimination objection was denied.

On appeal plaintiffs contend that the trial court's order should be reversed and that the lower court should be required to 1) engage in a particularized inquiry into the validity and scope of the assertions of the Fifth Amendment privilege against self-incrimination; 2) conduct an in camera hearing in aid of that particularized inquiry; 3) strike the assertions of the privilege against self-incrimination with respect to each question propounded and each document requested for which the non-party witnesses fail to properly justify their assertions of the privilege; and 4) state for the record the particular bases upon which the trial court might subsequently sustain any assertions of the privilege against self-incrimination with respect to any particular questions propounded or any particular documents requested.

Appealability

The first threshold issue we must address is whether the trial court's order denying the major portion of plaintiffs' application is final and appealable. Plaintiffs instituted the present proceedings in California pursuant to Code of Civil Code Procedure sections 2023 and 2034. ² As a general rule no order in a civil action is appealable unless it is embraced within the list of appealable orders prescribed by statute. ( § 904; Lund v. Superior Court (1964) 61 Cal.2d 698, 709, 39 Cal.Rptr. 891, 394 P.2d 707.) Thus, a party normally may not appeal from a discovery order. (Southern Pacific Co. v. Oppenheimer,(1960) 54 Cal.2d 784, 786, 8 Cal.Rptr. 657, 356 P.2d 441; Bartschi v. Chico Community Memorial Hospital (1982) 137 Cal.App.3d 502, 507, 187 Cal.Rptr. 61.) The rationale for this rule is that in the great majority of cases the delay due to interim review is likely to result in harm to the judicial process by reason of protracted delay (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5, 123 Cal.Rptr. 283, 538 P.2d 739) and discovery orders may be reviewed on appeal from a final judgment on the merits. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 777, fn. 1, 149 Cal.Rptr. 499; Wooldridge v. Mounts (1962) 199 Cal.App.2d 620, 628, 18 Cal.Rptr. 806.) However, we think an exception to the general rule exists where, as here, no final review of the underlying action will take place in a California forum.

In Adams v. Woods (1861) 18 Cal. 30, our Supreme Court held that a discovery order by a California court relating to production of documents for use in an action pending in New York was final and appealable. More recently, some federal appellate courts have held that all discovery orders are appealable when the discovery order is the only matter before the federal district court. (See, e.g., Brown v. Braddick (5th Cir.1979) 595 F.2d 961, 964-965 and cases cited therein.) The Second Circuit, however, has limited the right to appeal to only those cases where the discovery order is the sole matter before the district court and where, as in this case, the lower court denies discovery of a non-party. (Shattuck v. Hoegl (2d Cir.1975) 523 F.2d 509, after further proceedings, 555 F.2d 1118, 1120.)

In the instant action, the superior court's denial of plaintiffs' request for discovery was a final judgment, at least within this jurisdiction. Accordingly, we find an appeal lies from the superior court's order.

Lack of Respondent's Brief

The remaining threshold issue concerns the proper standard of review when, as in the present case, no respondent's brief has been filed on appeal. Rule 14 of the California Rules of Court provides that every respondent shall file a brief, and where no respondent brief is filed rule 17(b) applies. ³ "Courts have differed in the application of this rule with some taking a strict view and holding that the failure to file a brief was in effect a consent to a reversal [citation], or an abandonment of any attempt to support the judgment. [Citation.] Since the burden is always on the appellant to show error, other courts have taken the position that the failure to file a brief does not require an automatic reversal. [Citations.] The better rule and the one which we follow is to examine the record on the basis of appellant's brief and to reverse only if prejudicial error is found. [Citations.]" (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55, 131 Cal.Rptr. 335; see also, In re Marriage of Schultz (1980) 105 Cal.App.3d 846, 853, 164 Cal.Rptr. 653.) It is on the basis of what we too perceive to be the better rule that we now proceed to address the central issue in this case.

Assertion of Privilege

Although both the United States and California Constitutions speak of the right not to be compelled to testify against oneself in a criminal trial (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15), such right has been greatly expanded by judicial decision. In Kastigar v. United States (1972) 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 the United States Supreme Court declared that the privilege against self-incrimination "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory ...." (Id., at p. 444, 92 S.Ct. at p. 1656.) Thus, the privilege extends to a person appearing only as a witness in any kind of proceeding where testimony can be compelled. (Gonzales v. Superior Court (1980) 117 Cal.App.3d 57, 62, 178 Cal.Rptr. 358.)

This being the law, it is clear that non-party deponents may assert their privilege not to incriminate themselves through the taking of deposition or the production of documents in a civil context such as that before us. ⁴ (See, e.g., Zonver v. Superior Court (1969) 270 Cal.App.2d 613, 76 Cal.Rptr. 10...