Opinion
For Opinion on Hearing, see 51 Cal.Rptr. 100, 414 P.2d 36.
Edward Napier Thomson, San Francisco, for petitioner.
No appearance for Respondent.
Hollander, Lipian, Horwitz & Kornfield, and Irving J. Kornfield, Oakland, for real parties in interest.
CONLEY, Presiding Justice.
The petitioner seeks by an appropriate writ to annul an order in the nature of a judgment which required him to pay the sum of $500 to the attorneys for the plaintiffs. The situation arose in the case of Beverly Susan Griffin et al. v. Reno Sardella, Tuolumne County No. 10062, an action by which plaintiffs sought to recover damages from the defendant in conducting a pack trip in the Sierras as the result of which Mrs. Griffin allegedly suffered injuries.
The plaintiffs served the defendant, Sardella, with interrogatories, which were unanswered for a considerable time. Counsel for the plaintiff then served Mr. Weinkauf, as attorney for the defendant, with a notice of motion to strike the answer previously pleaded by the defendant, to enter a judgment of default and for 'reasonable expenses in making this Motion, and reasonable attorneys' fees for same.' The notice of motion stated that it would be made upon the grounds that said defendant '* * * has wilfully failed to serve answers to interrogatories submitted under Section 2030 of the Code of Civil Procedure of the State of California after proper service of such interrogatories, upon all the pleadings and records of this case, upon the declaration of Irving J. Kornfield, attached thereto, and upon oral and documentary evidence to be produced at the time of the hearing.' Before the time set for hearing the motion, the interrogatories were answered in writing and verified by Mr. Weinkauf on the ground that the defendant was not available in the same city as his attorney. The real party in interest correctly maintained that it is the duty of a party to answer and verify personally interrogatories directed to him. On July 23, 1965, a hearing was held in the absence of Mr. Weinkauf, he having procured the services of a Sonora attorney to appear for the defendant at that time. The court then made the following order:
'1. That proper answers to said interrogatories be served and filed by defendant not later than September 3, 1965.
'2. That George Weinkauf, attorney of record for the defendant pay forthwith to Hollander, Lipian, Horwitz and Kornfield, attorneys for plaintiff the sum of $500.00 as attorneys fees and expenses.'
In the order the court stated that it appeared that '* * * there has been a wilful failure on the part of the defendant to serve proper answers to the interrogatories sent by the plaintiff on February 19, 1965.' [Italics ours.] It will be noted that Mr. Weinkauf was not a party to the action and that there was never a preliminary order by the court directing Mr. Weinkauf to procure additional answers to the interrogatories, or, in fact, to do anything at all. That there was no contempt proceeding is conceded. This was a direct order in the nature of a judgment against Mr. Weinkauf, who was not a party to the action; he was not liable in the absence of a preliminary order requiring action on his part and a proceeding against him in the nature of contempt.
The petition for a writ of certiorari or prohibition contains two grounds. It is first contended that the order provides for the payment of a sum of money that is not reasonable in the circumstances, and, secondly, that the order in fact is one which could only be made in a contempt proceeding, and that there was no proper preliminary procedure.
If the trial court had jurisdiction to make the order, we would not be disposed to question the finding as to the proper amount of expenses or damages awarded as that is a matter largely within the reasonable discretion of the trial court and dependent upon the evidence, but we do find that there was no jurisdiction to make such an order. While Mr. Weinkauf was an attorney for the defendant, he was not a party to the action itself; he had not been ordered to do anything, and there was no contempt proceeding which would have subjected him to the jurisdiction and which Lund v. Superior Court,
Let a writ of prohibition issue to restrain the Superior Court of the State of California in and for the County of Tuolumne from enforcing in any way, shape, or form the questioned order or judgment for $500.
RALPH M. BROWN, J., concurs.
STONE, Justice (dissenting).
I dissent. First, that the attorney is not a party to the action, as noted by the majority, is immaterial. The discovery statutes recognize that an attorney is an officer of the court and that he bears a responsibility to conduct litigation according to statutory rules of procedure. Express penalties are provided by Code of Civil Procedure section 2034(d) for failure to comply with the discovery statutes. Lund v. Superior Court, 61 Cal.2d 698, 39 Cal.Rptr. 891, 394 P.2d 707, to which the majority opinion refers, is not in point since it was concerned with the liability of a non-party witness who had no official connection with the litigation.
Second, a preliminary order by the court directing the attorney to comply with the particular discovery statute here in question is not a prerequisite to the imposition of sanctions; violation of the statute subjects him to the penalties provided in section 2034(d). These statutory requirements can be equated to an order for performance in the classic contempt proceeding referred to in the majority opinion. The hearing on motion to impose sanctions is comparable to a comtempt hearing. The court found that petitioner had not complied with the statutory requirements and, by imposing sanctions, acted within its discretion.
If the majority opinion were to prevail, the procedure it approves would seriously impede discovery proceedings and serve to delay rather than expedite the trial of a case. For example, an indolent attorney or one bent on protracting litigation could ignore a demand for discovery and thus force opposing counsel to petition the court to order compliance, require a hearing on the motion, wait until an order is served on him fixing time for compliance, and then finally comply within the time allowed and be free from sanctions of any kind. To open the way to thus impede and delay discovery and add to the cost of litigation violates the letter as well as the spirit of the discovery statutes.
I would deny the writ.