Opinion
Page __
__ Cal.App.2d __ 340 P.2d 743 TWIN LOCK, INCORPORATED, a California Corporation, Petitioner, v. SUPERIOR COURT OF the State of CALIFORNIA IN AND FOR the COUNTY OF LOS ANGELES, Respondent, Albert Agron, Robert A. Clifford and Joseph R. Frank, Real Parties in Interest. Civ. 23846. California Court of Appeals, Second District, First Division June 10, 1959Hearing Ordered July 13, 1959.
See, also, 340 P.2d 748.
[340 P.2d 744] W. Claude Fields, Jr., Los Angeles, for petitioner.
Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Assistant County Counsel, and Edward A. Nugent, Deputy Counsel, Los Angeles, for respondent.
O'Melveny & Myers, Philip F. Westbrook, Jr., and Norbert A. Schlei, and Maxwell E. Greenberg, Los Angeles, for real parties in interest.
NOURSE, Justice pro tem.
Petitioner seeks a writ of prohibition to enjoin the respondent court from enforcing by sanctions an order made for the appearance of certain non-resident party witnesses.
Petitioner commenced the subject action to recover both compensatory and punitive damages against the defendants therein named for violation of a fiduciary relationship alleged to exist between petitioner and certain of the defendants under a contract and unfair competition. Petitioner also sought to enjoin the defendants from attempting to represent the petitioner before the United States Patent Office, from claiming to be the owner of a certain invention and from manufacturing or selling certain articles manufactured and containing the invention and trade secrets which petitioner claimed to own.
The complaint alleges that petitioner had entered into an agreement to purchase from the defendants Frank, Agron andClifford (real parties in interest herein) a certain invention and an application for letters patent thereon for the price of $1,250,000 plus certain additional sums; the said purchase price to be payable in installments at certain prescribed times as set forth in the agreement; that petitioner had performed all of the terms and conditions of said contract upon its part to be performed; that the real parties had asserted that the contract had been breached and claimed to be the owner of said letters patent and had entered into the manufacture of the devices which contained the invention in question.
Defendants Agron et al. answered, denying performance of the argument by petitioner; alleging that petitioner had defaulted in the making of payments on the [340 P.2d 745] purchase price and that by reason thereof said agreement had been terminated. They filed a cross-complaint alleging a breach of contract by the petitioner; that a controversy existed as to whether petitioner was in default under the contract; as to whether the contract had been terminated; as to whether Twinlock, Inc., a Delaware corporation and the owner of all the stock of petitioner and petitioner were liable for certain sums as damages. They prayed not only for declaratory judgment but for an accounting and damages and for an injunction against the cross-defendants manufacturing or selling any devices involving the use of the invention above mentioned and enjoining petitioner from removing from California any of its assets.
A preliminary injunction was issued by the court by the terms of which petitioner was enjoined from making a transfer of any of its funds to certain of its officers, one Krause and one Bannister who are respectively the secretary and a director of petitioner and are among those whose depositions are sought by the real parties in interest.
Real parties in interest, respondent here, stipulated in the trial court and in oral argument before this court that payments by petitioner to Krause and Bannister of their necessary expenses in coming to and staying in Los Angeles for the purpose of giving their depositions should not be deemed a violation of the provisions of the injunction.
After the subject action was at issue, the real parties in interest gave notice pursuant to section 2019 of the Code of Civil Procedure that they would take the depositions of certain named persons including Charles F. Krause, Jr., C. Parke Masterson, Jr., Joseph Lavorata, Norman DePlanque and Lemuel Bannister, Jr., at Los Angeles at the time and place set forth in the notice. Each of the persons named in the notice is an officer or a director of petitioner and each of them resides in the state of New York and none of them was in the state of California at the time of the giving of such notice.
Petitioner moved the respondent court to vacated the notice of the taking of the depositions of the above named persons upon the ground that the taking of the depositions at the place designated in the notice would cause annoyance, undue expense, embarrassment and oppression. The respondent court denied their motion to vacate and ordered that the depositions of said officers and directors be taken at Los Angeles at times therein named. Petitioner then sought a writ of prohibition from this court and on April 10th this court denied the petition upon the grounds that the petition was premature inasmuch as petitioner had not exhausted its remedies under section 2019(b) of the Code of Civil Procedure before the respondent court by applying thereto for a change in the place of the taking of said depositions and had failed to show that the respondent court had threatened to impose sanctions.
Petitioner did not produce the above named witnesses at the time and place fixed by the lower court's order but did petition that court for a change in the place of the taking of said depositions from Los Angeles to New York city. The real parties in interest simultaneously moved the court pursuant to section 2034 of the Code of Civil Procedure for an order imposing the sanctions provided for by paragraph (b)(2)(iii). The respondent court denied petitioner's motion for a change of the place of the taking of the depositions; ordered that the depositions of the witnesses be given at Los Angeles on dates fixed in the order and continued the real parties' in interest motion for sanctions to a date beyond that which it had fixed for the giving of the depositions.
Petitioner then filed the present petition for a writ of prohibition and this court issued an alternative writ restraining the respondent court from further proceedings pending further order of this court.
Petitioner makes but one contention to support its petition for a peremptory writ of prohibition. Briefly stated this contention is that a court of this state is without power to impose sanctions pursuant to section 2034(d) of the Code of Civil Pro [340 P.2d 746] cedure on account of the failure of a party witness (that is, a party or an officer, director or managing agent of the party) to appear pursuant to the notice to take his deposition given under section 2019(a)(1) of the Code of Civil Procedure in any case where the notice fixes the place of the taking of the party witness's deposition at a place outside of the county in which he resides and more than 150 miles from his place of residence. Petitioner bases this contention upon the provisions of section 1989 of the Code of Civil Procedure that a witness 'is not obliged to attend as a witness' unless the distance to the place of the giving of his deposition is less than 150 miles from his place of residence. This contention cannot be sustained.
In substance section 2019(a)(1) provides that in case of a party witness, service of a subpoena upon the deponent is not required if proper notice of the taking of the deposition be made.
The taking of a deposition ofa party and in case of a corporation, the deposition of its officers, directors or managing agents is a part of the discovery procedure provided for by chapter 1904 of the Statutes of 1957 (amending or enacting §§ 2016 through 2035 of the Code of Civ.Proc.). The giving of the notice of the taking of a deposition of a party or an officer, director or managing agent of a party does not place any compulsion upon the witness to attend but does place a compulsion upon the party to produce that witness. The notice is not directed to the witness but to the party and a failure to respond to the notice does not make the witness subject to the contempt powers of the court or to arrest. Section 2034 of the Code of Civil Procedure makes clear the difference in the effect of the failure of a witness to respond to a subpoena and the failure of a party to appear pursuant to a notice of the taking of his deposition. Under the provisions of that section, if the deposition to be taken is that of a person other than a party and he is not under subpoena, no sanctions can be invoked because of the failure of the witness to appear nor is the witness subject to the contempt powers of the court or to arrest pursuant to section 1993 of the Code of Civil Procedure. If such a witness be under subpoena and he fails to appear he may be punished for contempt or be placed under arrest provided the subpoena commanded his appearance at a place not more than 150 miles from his place of residence but sanctions against a party may not be imposed. If, however, the person whose deposition is to be taken be a party witness who has not been placed under subpoena, his failure to appear does not subject him to the contempt powers of the court or to arrest but the court may impose sanctions against the party pursuant to paragraph (d) of section 2034 of the Code of Civil Procedure. In imposing sanctions the court is not exercising its power to compel the attendance of the witness for the purpose of giving evidence but is exercising its power to compel discovery by a party.
For the distinction between the power of the court to punish for contempt for a violation of a subpoena and its power to impose sanctions, see Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530; Peitzman v. City of Illmo, 8 Cir., 141 F.2d 956.
Section 1989 of the Code of Civil Procedure is not a limitation on the court's power to compel a party to make discovery but on its power to compel, through proceedings in contempt or by arrest, the attendance of a witness at any place outside of the county in which he resides and more than 150 miles from his place of residence.
Petitioner argues that if the court has power to impose sanctions against the party because he does not produce a party witness it is accomplishing indirectly that which it could not accomplish directly by compelling the witness's attendance by subpoena and that therefore it must have been the intention of the Legislature to make section 1989 of the Code of Civil Procedure, which it amended at the same time as [340 P.2d 747] it enacted the present sections 2016 to 2035, both inclusive, applicable to discovery proceedings initiated to procure the deposition of a party witness. In support of this argument they direct our attention to a report of the Committee on Administration of Justice of the State Bar of California (see State Bar Journal, July-August, 1958, pp. 389-393), which committee drafted and through the State Bar submitted to the State Legislature the sections of the Code of Civil Procedure last above mentioned, stating that it had been the intent of the committee in drafting the proposed statutes that section 1989 of the Code of Civil Procedure should be applicable to the provisions of section 2019(a)(1). Such a statement by the committee, if it had been contained in the report to the board of governors or to the Legislature at the time the statutes were proposed, would be a great aid in interpreting the statutes in question. Having been made after their enactment it is not of any aid particularly in view of the fact that when the enactment of the present sections 2016-2035 was proposed to the Legislature they were proposed as an adoption by this state of federal rules of procedure relative to discovery and with the express purpose of broadening discovery proceedings in California to the end that they would be comparable with those proceedings in the federal courts. (Report of the Committee on Administration of Justice, 31 Cal.State Bar Journal (1956) pp. 204-231.) We must assume that in enacting these discovery statutes which are in substance exact counterparts of the federal rules, the Legislature intended that they should have the same meaning, force and effect as have been given the federal rules by the federal courts. Union Oil Associates v. Johnson, 2 Cal.2d 727, at page 735, 43 P.2d 291, at page 295, 98 A.L.R. 1499 and cases there cited; Scripps Memorial Hospital v. California Employment Comm., 24 Cal.2d 669, 151 P.2d 109, 155 A.L.R. 360; Holmes v. McColgan, 17 Cal.2d 426, at page 430, 110 P.2d 428, at page 430. In the federal courts it has been uniformly held that the limitations as to the place of the taking of the deposition of a witness subpoenaed to appear and gave his deposition as set forth in Rule 45 of the Federal Rules of Civil Procedure (28 U.S.C.A.) are not applicable to proceedings for the purpose of discovery through the depositions of party witnesses. Collins v. Wayland, 9 Cir., 1944, 139 F.2d 677; Anthony v. RKO Radio Pictures, Inc., D.C.1948, 8 F.R.D. 422; Bernstein v. N. V. Nederlandsche-Amerikaansche, etc. (Chemical Bank & Trust Co.), D.C., 15 F.R.D. 37; 4 Moore's Federal Practice, p. 2018 and cases there cited.
Petitioner argues that great hardships might be imposed where the courts of this state have acquired jurisdiction over a defendant non-resident individual or foreign corporation. That the statute might be abused and hardships imposed is quite true, but the court is given the power to change the place of the taking of the deposition of a party witness and must use sound discretion in refusing such an application and in the case of a party defendant who had not voluntarily brought himself within the jurisdiction of the courts of this state it is unlikely that a court in the exercise of sound discretion would order him to come to this state for the purpose of discovery. We are not, however, faced with any question of discretion as at oral argument here, counsel for petitioner abandoned any claim of any abuse of discretion.
Further, the witnesses here are officers of a corporation incorporated under the laws of this state and it has its principal place of business within the county in which it brought the subject action and it, if not its officers, is a resident of the county where the depositions are to be taken.
Petitioner does not assert that there is any constitutional limitation on the power of the Legislature to authorize the courts to impose sanctions against a party who had failed to make discovery in accordance [340 P.2d 748] with the statute. It is apparent, therefore, that the respondent court having jurisdiction over the parties and the subject matter of the action has the power to make the order imposing sanctions which it threatens to make. In imposing sanctions it would therefore not act in excess of its jurisdiction and this court is therefore without power to prohibit its imposition of the sanctions.
By the alternative writ heretofore issued, we stayed the order of the respondent court which changed the dates for the taking of the depositions of the party witnesses of plaintiff corporation. Petitioner now asks that if we deny the peremptory writ, which we must do, that we direct the respondent court to fix new dates for the taking of those depositions and to withhold any order imposing sanctions until the witnesses have failed to appear at the dates fixed by the court. This we would do had we the power for the statute which we have been called upon to construe are new enactments in this state and counsel have had no decisions of appellate courts of this state to guide them and have in good faith sought the protection of this court and should not be penalized because, although their contentions had merit, we could not agree with them. We do not, however, have the power to direct the trial court as to what action it may take as to matters within its jurisdiction. If it should err in exercising its jurisdiction that error would necessarily have to be presented to the appellate court upon an appeal. It must not be understood from what we have just stated that we entertain any thought that the respondent court will take the drastic step of imposing the sanctions asked by the real parties in interest, without first providing a reasonable further opportunity for petitioner to comply with the notice of the taking of the depositions in question.
The alternative writ is discharged and the peremptory writ is denied.
WHITE, P. J., and LILLIE, J., concur.