Opinion
For, opinion on Hearing, see 126 Cal.Rptr. 297
References To This Case
Opinion
on pages 189-212 omitted. [*]
[538 P.2d 354] Burt Pines, City Atty., Edward A. Schlotman, Deputy City Atty., Joseph P. Busch, Jr., Dist. Atty., Ronald Ross and Otis L. Hubbard, Deputy Dist. Attys., for petitioner.
No appearance for Respondent.
George Grove, Jr., Beverly Hills, for real party in interest.
STEPHENS, Acting Presiding Justice.
This is a petition for writ of mandate to compel the answering of some 156 interrogatories under Code of Civil Procedure sections 2016 and 2030. We issued an order to show cause.
The sole issue before us is whether, in this case, the trial court is obligated to direct the answering of interrogatories in a red light abatement action (Pen.Code, § 11225) where an 'immunity' order is agreed to by county prosecutory authorities. For the purpose of our consideration, we assume that the proposed 'immunity' order is as broad and efficacious as is possible.
We do not (nor apparently did the trial court) analyze the questions posed to ascertain whether reasons exist for their invalidity, other than defendant's claim of his Fifth Amendment right not to answer.
Petitioner relies upon People v. Superior Court (Kaufman), 12 Cal.3d 421, 115 Cal.Rptr. 812, 525 P.2d 716, as authority compelling the responses to its interrogatories. The Kaufman case leans heavily upon In re Lifschutz, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557 as to its consideration of the scope of Code of Civil Procedure section 2019, subdivision (b)(1). Lifschutz held that section 2019, subdivision (b), subsection (1) grants the court broad discretion[538 P.2d 355] [123 Cal.Rptr. 355] to issue "any . . . order which justice requires to protect the party or witness from annoyance, embarrassment or oppression." (Id., at 437, 85 Cal.Rptr. at 844, 467 P.2d at 572). In Kaufman, the court stated:
Code of Civil Procedure § 2019, subd. (b)(1):
'Interpreted broadly, Lifschutz recognizes that discretion rests in the trial court to control the scope and use of a deposition where a claim of privilege has been tendered and the limits of an exception to the privilege are at issue.' (at p. 426 of 12 Cal.3d, at p. 815 of 115 Cal.Rptr., at p. 719 of 525 P.2d.)
'It was concluded in Byers [v. Justice Court, 71 Cal.2d 1039, 80 Cal.Rptr. 553, 458 P.2d 465] that as the imposition of use restrictions would not (1) frustrate any apparent legislative purpose behind the 'hit and run' statute, (2) unduly hamper criminal prosecutions of drivers involved in such accidents, or (3) preclude the Legislature from overriding the judicial grant of immunity if it wished to do so (id. at p. 1056, 80 Cal.Rptr. 553, 458 P.2d 465), the court was authorized to grant immunity and impose a proper use limitation without infringing constitutional rights against self-incrimination and notwithstanding the absence of any specific legislative authorization. (Accord, Bailey v. Superior Court (1970) 4 Cal.App.3d 513, 84 Cal.Rptr. 436.)' (at p. 428, at p. 817 of 115 Cal.Rptr., at p. 721 of 525 P.2d)
'. . . We thus conclude that pursuant to said code section the respondent court is vested with jurisdiction to issue an appropriate protective order.' (at p. 429, at p. 817 of 115 Cal.Rptr., at p. 721 of 525 P.2d.)
The jurisdiction to grant an immunity order does not necessarily mandate the issuance of such order. If in the discretion of the trial court such an order cannot achieve all of the protection included within section 2019 (i. e., annoyance, embarrassment, or oppression), it is not obligated to order the answering of the interrogatories. We note that Kaufman involved allegations of deceptive advertising under the Business and Professions Code. Here, the allegations are brought under the Red Light Abatement Law.
Defendant argues that there can be no immunity order which can be adequate. He contends that to answer the interrogatories may subject him to criminal prosecution not only in state but also in federal courts. Petitioner responds that the Red Light Abatement Law is civil in nature. (People v. Arceqa, 49 Cal.App. 233, 234, 237, 193 P. 268 and People v. Barbiere, 33 Cal.App. 770 775, 166 P. 812.) Defendant relied heavily upon Board of Supervisors v. Simpson, 36 Cal.2d 671, 227 P.2d 14 defore the trial court, and continues to do so here. '[A]ll tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. . . . Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.' (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 323, 369 P.2d 937, 939.) Defendant contends that the closure of the premises for one year and the sale of the personal property under the instant action are penal in nature, relying upon Board of Supervisors v. Simpson, 36 Cal.2d 671, at pp. 674-675, 227 P.2d 14, at p. 16, where the court stated:
'. . . The abatement of places under the Red Light Abatement Act is [538 P.2d 356] [123 Cal.Rptr. 356] more appropriately the duty of the district attorney since it is compatible with his duties as public prosecutor. It will be remembered that the proceeding is prosecuted in the name of the people of the state, as are criminal prosecutions, which indicates that the county as such is not as much concerned as the people of the state. The Government Code, in speaking of the duties of the district attorney, states that he is 'the public prosecutor' and 'must conduct on behalf of the people all prosecutions for public offenses' and prosecute actions for the recovery of 'fines, penalties, and forfeitures' accruing to the state or his county. Govt.Code, §§ 26500-26502, 26521. Proceedings under the red light abatement act are somewhat in the nature of actions to recover penalties or forfeitures, for thereunder the fixtures and paraphernalia in the place abated are partially forfeited and the place may be closed to use for any purpose for a year. Stats.1913, p. 20 § 7. It is penal in nature. See State ex rel. Whall v. Saenger Theatres Corp., 190 Miss. 391, 200 So. 442; Hofferman v. Simmons, 177 Misc. 962, 32 N.Y.S.2d 244. While actions to abate nuisances are considered civil in nature (cases cited supra) the abatement of houses of prostitution is in aid of and auxiliary to the enforcement of the criminal law. Such places are declared public nuisances. Stats.1913, § 20. Each and every day a public nuisance is maintained is a separate offense and is a misdemeanor. which it is the duty of the district attorney to prosecute by continuous prosecutions. Pen.Code, § 373(a). In general, any person maintaining a public nuisance is guilty of a misdemeanor. Pen.Code, § 372. It is aptly said in People ex rel. Bradford v. Barbiere, 33 Cal.App. 770, 775, 166 P. 812. The general object of the legislation involved in the said act (red light abatement act) is, it is obvious, no different from that of certain penal statutes which have been upon the pages of our lawbooks for many years. Sections 315 and 316 of the Penal Code declare it to be a misdemeanor for any person to keep or reside in a house of ill fame in this state, resorted to for purposes of prostitution or lewdness, or to keep a disorderly house, or any house for the purpose of assignation or prostitution. And the last-named section further places a ban upon the act of letting or leasing property to another, where the owner of the property knows that the same is to be used for the purpose of assignation or prostitution, and makes such act a misdemeanor.
'The abatement act is only in furtherance of the policy of the state as established by the sections of the Penal Code above adverted to, and differs in a general sense from those sections only in that, unlike those sections, its design was to establish a summary method, through the civil processes of the law, for putting a stop to the maintenance of houses of ill fame, as that designation is commonly understood, and other like places, where acts of lewdness and prostitution are habitually practiced and carried on as a business. The act, in other words, represents only the concrete application of the state's power of police, and, preferably to the courts of criminal jurisdiction, invokes the aid of the civil courts as the most certain instrumentality for the suppression of an evil which has been by the legislature deemed of so pernicious a nature, in its effect upon society, as to have actuated that body in denouncing its practice as a public crime.' (People ex rel. Bradford v. Barbiere, 33 Cal.App. 770, 775, 166 P. 812, 814.)'
We thus have two sound reasons supportive of the trial court's refusal to issue an immunity order and not to require defendant to answer the interrogatories. First, we cannot say that the discretionary power of the trial court was erroneously exercised when it determined that no order could adequately protect defendant from 'annoyance, embarrassment, or oppression.' (Code Civ.Proc., § 2019, subd. (b)(1).) [538 P.2d 357] [123 Cal.Rptr. 357] Second, we agree with defendant-respondent that the discovery sections providing for interrogatories are restricted to civil actions in the fullest sense. "[I]t has long been held that civil discovery procedure has no relevance to criminal prosecutions. [Citation.]' (Pitchess v. Superior Court, 11 Cal.3d 531, 536, 113 Cal.Rptr. 897, 900, 522 P.2d 305, 308.) Where the designation of the action may be civil but its ultimate effect, its nature, is criminal, there is no right to discovery in the manner it was sought here.
We are cognizant of Murphy v. Waterfront Comm'r, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 and its holding that the granting of immunity from state prosecution likewise protects the deponent from federal prosecution. This is not in point. The crux of the attempted immunity here offered would be to immunize from prosecution in other criminal actions but not in the Red Light Abatement case in which the evidence is sought, despite the fact that '[p]roceedings under the red light abatement act are somewhat in the nature of actions to recover penalties or forfeitures, for thereunder the fixtures and paraphernalia in the place abated are partially forfeited and the place may be closed to use for any purpose for a year. [Pen.Code, § 11230.] It is penal in nature.' (Simpson, supra, 36 Cal.2d at 674, 227 P.2d at 16.)
The peremptory writ of mandate is denied. Costs to defendant-respondent.
ASHBY and LORING, JJ., concur.
Assigned by Chairman of the Judicial Council.
[*] Opinion that appeared on pages 189 to 206 deleted due to hearing granted. Opinion that appeared on pages 207-212 deleted due to rehearing granted. See 53 Cal.App.3d 966 for subsequent opinion.
'Upon motion reasonably made by any party or by the person to be examined or notified to produce books, documents, or other things and upon notice, or upon the court's own motion and after giving counsel an opportunity to be heard, and in either case for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated time or place other than stated in the notice of taking the deposition, or that the deposition may be taken outside the county of residence and at a place more than 75 miles and less than 150 miles from the residence of the deponent in cases not provided for by paragraph (2) of subdivision (a) of this section, or that it shall not be taken except by allowing written interrogatories by one or more parties, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, books, documents, or other things, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. In granting or refusing such order the court may impose upon either party or upon the witness the requirement to pay such costs and expenses, including attorney's fees, as the court may deem reasonable.'