(See Olson, Brosnahan Margolin, Attorney Fees from the Perspective of the Trial Judge and Trial Attorney (1981) Joint CJA/State Bar Program Seminar Material.) Recognizing that fact, M.C.A. based his trial court motion for expenses solely on Code of Civil Procedure section 1987.2 That civil discovery statute, of doubtful application in criminal proceedings ( Fabricant v. Superior Court (1980) 104 Cal.App.3d 905, 914 [ 163 Cal.Rptr. 894]), permits the trial court to award expenses, including attorney fees, against one who in bad faith or without substantial justification makes or opposes a motion to quash a subpoena. Code of Civil Procedure section 1987.2 provides: "In making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorneys' fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive."
" (32 Cal.App.3d at p. 1025.) Fabricant v. Superior Court (1980) 104 Cal.App.3d 905 [ 163 Cal.Rptr. 894], is also factually analogous. There, a criminal defendant, acting pro se, randomly subpoenaed three attorneys as witnesses to support his request for a telephone in his jail cell.
It notes that "[a]ppellant would contend that the trial court was without jurisdiction to award attorney's fees against a pro[.] per[.] defendant for pursuing his constitutional right to summon witnesses for his defense and would contend such fees are prohibited by Fabricant v. Superior Court (1985) 164 Cal. App. 3d[] 905." (The correct citation is Fabricant v. Superior Court (1985) 104 Cal.App.3d 905 (Fabricant).)The Joint Application further states that "[t]he parties are in agreement that it is in the interest of justice that [the] Court act favorably on this joint application for reasons which include: [¶] 1. Reversal of the sanctions order will place the parties in nearly the same position they would be if the appeal were successfully prosecuted to completion.
In Caryl Richards, Inc. v. Superior Court, supra, 188 Cal.App.2d 300, the court vacated as disproportionate the sanction which struck the entire answer. In Fabricant v. Superior Court (1980) 104 Cal.App.3d 905 [ 163 Cal.Rptr. 894], the court vacated as excessive the monetary sanctions that were imposed for the purpose of punishment. In Yarnell Associates v. Superior Court (1980) 106 Cal.App.3d 918 [ 165 Cal.Rptr. 421], a fine was reversed for being purely punitive.
(6) "`The law fixes the fees of a witness and the only obligation incurred in the summoning of a witness is the obligation to pay the fees which the law fixes for the attendance of a witness. . . .'" ( Fabricant v. Superior Court (1980) 104 Cal.App.3d 905, 911 [ 163 Cal.Rptr. 894], quoting from McClenahan v. Keyes (1922) 188 Cal. 574, 584 [ 206 P. 454].) (3c) Arguably, Silber appeared on March 28 in the dual capacity of nonparty witness and attorney for the defendant.
(7) Generally, a court may properly award attorney's fees only pursuant to an agreement of the parties or statutory authority. This principle is codified in Code of Civil Procedure section 1021: `Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties. . . .'" ( Bauguess v. Paine (1978) 22 Cal.3d 626, 634 [ 150 Cal.Rptr. 461, 586 P.2d 942]; accord Steele v. Gold (1984) 150 Cal.App.3d 928, 931 [ 198 Cal.Rptr. 257] ; Fabricant v. Superior Court (1980) 104 Cal.App.3d 905, 909 [ 163 Cal.Rptr. 894].) (8a) Much of what we have said with respect to proxy expenses is equally applicable to the trial court's order that Tago pay a percentage of the Johnsons' attorneys' fees.
Even though at least two appellate courts have expressed some inclination to accept the theory (see Save El Toro Assn. v. Days (1979) 98 Cal.App.3d 544, 554-555 [ 159 Cal.Rptr. 577]; County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 91-93 [ 144 Cal.Rptr. 71]), other appellate courts have not. (See Yarnell Associates v. Superior Court (1980) 106 Cal.App.3d 918, 923 [ 165 Cal.Rptr. 421]; Fabricant v. Superior Court (1980) 104 Cal.App.3d 905, 908-910 [ 163 Cal.Rptr. 894].) Counsel for the People has called these cases to our attention by written memo, and has also cited Bauguess v. Paine (1978) 22 Cal.3d 626, 635-640 [ 150 Cal.Rptr. 461, 586 P.2d 942].
This case is unlike Welgoss v. End (1967) 252 Cal.App.2d 982 [ 61 Cal.Rptr. 52], where the award of $1,000 in attorney's fees under Code of Civil Procedure section 2034 was disallowed as punitive since it sought to penalize plaintiff's dilatory conduct before defendant sought a motion to compel discovery. Appellants' reliance on Bauguess v. Paine (1978) 22 Cal.3d 626 [ 150 Cal.Rptr. 461, 586 P.2d 942] (attorney misconduct causing mistrial); Yarnell Associates v. Superior Court (1980) 106 Cal.App.3d 918 [ 165 Cal.Rptr. 421] (expense of resisting motion to quash service of process); and Fabricant v. Superior Court (1980) 104 Cal.App.3d 905 [ 163 Cal.Rptr. 894] (abuse of subpoena power) is misplaced. In each of those cases, the lower court purported to award attorney's fees under its inherent supervisory power but without statutory sanction to punish for misconduct, not brought as a contempt, in derogation of the traditional practice that each litigant bear his own attorney's fees, in the absence of an agreement or some equitable exception. (See Prentice v. North Amer. Title Guar.
We therefore issue a peremptory writ in the first instance (Code Civ. Proc., § 1088; San Diego Wholesale Credit Men's Assn. v. Superior Court (1973) 35 Cal.App.3d 458 [ 110 Cal.Rptr. 657]; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697 [ 96 Cal.Rptr. 165].) Note that in Fabricant v. Superior Court (1980) 104 Cal.App.3d 905 [ 163 Cal.Rptr. 894], the court reached a like conclusion as to attorney's fees and witness fees awarded as sanctions for abuse of the subpoena power. Let a peremptory writ of mandate issue, directing the trial court to set aside its order of May 1, 1980, insofar as it awards $250 in sanctions in favor of real party in interest and against petitioner.
Thus, the statement in Castello — that provisions in the Code of Civil Procedure govern criminal cases only if expressly made applicable thereto — properly is limited to the provisions in part 2 of the code, in which section 1008 appears. (See People v. Cook (1989) 209 Cal.App.3d 404, 407 [certain sections in part 1 of the Code of Civil Procedure apply in criminal matters]; Fabricant v. Superior Court (1980) 104 Cal.App.3d 905, 914-915 [many provisions in the Code of Civil Procedure apply in criminal proceedings, depending upon the chapter in which they appear and upon related provisions in the Penal Code].) Although the foregoing decisions considered criminal actions, rather than criminal special proceedings, Penal Code section 690 specifies that the provisions of part 2 of that code "shall apply to all criminal actions and proceedings in all courts, except where . . . special provision is made for particular courts or proceedings."