CARTER, J., Dissenting. I dissent.
As I understand the opinion approved by a majority of this court, the petitioner had the right to take the deposition of defendant Gertrude Temple, notwithstanding a judgment of dismissal had been entered in the action in which the deposition was sought to be taken and an appeal had been taken from said judgment, but the majority opinion appears to hold that the defendant was justified in refusing to answer questions propounded to her on the taking of said deposition, and the trial judge was justified in refusing an order to petitioner directing said defendant to answer said questions upon the ground that the deposition might be taken at a later date.
In my opinion, the trial judge had no discretion in this matter, and it was his plain duty to make the order requested by petitioner directing the witness to answer any questions which might be propounded to her on the taking of her deposition which were germane to the issues in the case. This view is clearly in accord with the provisions of the Code of Civil Procedure authorizing the taking of depositions, and with all of the cases on the subject, with the exception of Patrick Farms, Inc., v. Superior Court, 13 Cal. App. (2d) 424 [56 Pac. (2d) 1283]. The case just cited is contrary to all of the other cases dealing with the subject, and in my opinion the rule announced therein is unsound and should not be followed.
I think it is obvious that section 2021 of the Code of Civil Procedure confers upon a litigant an absolute right to take depositions in the cases provided for therein. By the express provisions of this section such depositions may be taken [269]“at any time after the service of summons or the appearance of the defendant”, which has been construed to mean at any time before the judgment becomes final. (San Francisco Gas & Elec. Co. v. Superior Court, 155 Cal. 30 [99 Pac. 359, 17 Ann. Cas. 933].) No discretion is conferred upon a trial court to determine when a litigant may take a deposition, and it is a matter over which the trial court has no control whatever, except to use the process of the court to enforce the provisions of the code when necessary to aid the party who is seeking to obtain the deposition.
It is well recognized by trial lawyers that the taking of depositions long prior to the time when they are to be used is essential to the proper and successful handling of eases, and the legislature in its wisdom saw fit to confer upon litigants the absolute right to take depositions at any time they see fit after the service of summons or the appearance of the defendant in pending actions.
The effect of the decision of the District Court of Appeal in the case of Patrick Farms, Inc., v. Superior Court, supra, and the majority opinion of this court in the case at bar, is to confer upon a trial court the power to specify the time when a litigant may take a deposition in certain cases, or stating it another way, to require a litigant to defer the taking of a deposition to a time when it appears to a trial court reasonable and proper that such deposition be taken. In other words, these decisions interpret section 2021 of the Code of Civil Procedure to read: ' ‘ The testimony of a witness in this State may be taken by deposition in an action at any time after service of the summons or the appearance of the defendant, except in cases where a trial court for good cause shown shall otherwise specify”. (Italicized portion added.) These decisions amount to nothing less than judicial legislation. They read an exception into section 2021 of the Code of Civil Procedure which is not there and which should not be there.
A litigant should not be subjected to the uncertainty of a discretionary ruling of a trial judge every time he attempts to procure evidence by deposition which the litigant thinks is essential to the proper preparation or presentation of his case.
The administration of justice is already so cumbersome and burdensome that poor litigants have great difficulty in meeting the requirements now imposed upon them in the presenta[270]tion of their cases to our courts, and if we are to lay down a rule which will enable one who desires to conceal and suppress evidence to successfully resist the taking of his deposition by the refusal of a trial judge to exercise his discretion in favor of the taking of such deposition, we are increasing such burden without in any way improving the administration of justice. In fact, the administration of justice is usually aided by requiring full disclosure of all facts within the knowledge of either party to the litigation. Furthermore, it quite often happens, and it has been approved as proper legal procedure, that depositions may be taken to determine whether it is advisable to further prosecute an action, either from the standpoint of whether the party seeking to take the deposition can prevail in the action, or can satisfy any judgment which he might recover if he does prevail. (Demaree v. Superior Court, 10 Cal. (2d) 99 [73 Pac. (2d) 605].)
To say that the effect of the majority opinion in the ease at bar does not deny a litigant his statutory right to take a deposition “at any time after service of the summons or the appearance of the defendant” is to disregard the inevitable consequences of long delays in securing evidence. It may be that if and when the judgment of dismissal in the case at bar is reversed, Gertrude Temple may be deceased, or out of the jurisdiction where it would be extremely difficult or even impossible to secure her deposition. The fact that the case involves an accounting and that the plaintiff’s right to an accounting must be first determined before an accounting can be ordered, does not change the situation. If such a rule is to be invoked, then in every ease where certain issues must be determined before evidence can be offered relating to other issues in the case, a litigant would be barred from taking depositions relating to any subject matter except the preliminary issues until after such issues were determined; in other words, in a ease in eminent domain, a litigant would be barred from taking the deposition of a witness on the issue of damages until after the issue of necessity had been determined, and in a personal injury case a litigant would be barred from taking a deposition relating to the nature and extent of the injuries suffered by the plaintiff until the issue of liability was determined. A complete answer to the reasoning advanced in the majority opinion in the case at bar [271]and in the opinion in the case of Patrick Farms, Inc., v. Superior Court, supra, is that no power, authority, or discretion is conferred upon the trial court to limit or restrict the right of a litigant to the taking of depositions relating to any issue in an action until some other issue is determined and since the right to take a deposition in this state is purely statutory, the litigants should be permitted to exercise the right conferred upon them by statute without being hampered by restrictions imposed by the court in derogation of express statutory authority.
It has been repeatedly held that when a litigant follows the procedure provided for in the Code of Civil Procedure for the taking of a deposition and the witness refuses to answer proper questions propounded to him on the taking of his deposition, and such refusal is certified to a judge of the superior court, such judge has no discretion to refuse to exercise the powers which the law has invested in him so far as necessary to secure to the litigant the right which the law confers upon him to take the deposition of a witness. (9 Cal. Jur., p. 403, see. 8; p. 407, sec. 10; Burns v. Superior Court, 140 Cal. 1 [73 Pac. 597]; Crocker v. Conrey, 140 Cal. 213, 218 [73 Pac. 1006] ; Scott v. Shields, 8 Cal. App. 12 [96 Pac. 385] ; San Francisco Gas & Elec. Co. v. Superior Court, 155 Cal. 30 [99 Pac. 359, 17 Ann. Cas. 933]; Kibele v. Superior Court, 17 Cal. App. 720 [121 Pac. 412] ; Rossbach v. Superior Court, 43 Cal. App. 729 [185 Pac. 879].)
The majority opinion attempts to distinguish the case at bar from the case of San Francisco Gas & Flee. Co. v. Superior Court, supra, upon the assumption that in that case the trial court had refused to issue the commission for the taking of the deposition upon the ground that it had no jurisdiction to do so, instead of holding that in the exercise of its discretion it was not a proper case for the issuance of such commission. I do not believe that the opinion in the case of San Francisco Gas & Elec. Co. v. Superior Court, supra, is susceptible of such an interpretation, as in that case the court stated in its opinion that since the proceeding had been instituted for the tailing of the deposition of Harry Orchard, his sentence had been commuted to life imprisonment, and therefore the immediate necessity for the taking of his deposition was obviated. But, notwithstanding this circumstance, this court in that case issued a writ of mandate directing the [272]trial court to forthwith issue a commission for the taking of Orchard’s deposition pending the determination on appeal of the case in which the deposition was to be used. In other words, the effect of the decision of this court in the case of San Francisco Gas & Elec. Co. v. Superior Court, supra, is that the trial court had no discretion to deny a litigant the right to take a deposition in a case pending on appeal.
It seems obvious to me that it should be immaterial whether the trial court denies a litigant the right to procure a deposition in a case which is pending on appeal because it is of the opinion that it has no jurisdiction to require the witness to submit to the taking of his deposition during such time, or that the ends of justice will be promoted by delaying the taking of the deposition until the case is decided on appeal. The effect of the ruling is the same. And if we are to hold that a trial court can in its discretion defer the taking of a deposition while a certain case is pending on appeal, it must' necessarily follow that such right can be denied in any case. To hold otherwise would be to confer upon a trial court the power to pass upon the merits of a case while it is pending on appeal in the Supreme or Appellate Court.
All the superior court decided in the case at bar was that the petitioner was not entitled to the order requested because the case in which he sought to take a deposition had been dismissed and the taking of such deposition should be deferred until the determination of the appeal from the order of dismissal. This, in effect, is all that the superior court had decided in the case of San Francisco Gas & Elec. Co. v. Superior Court, supra, and in all of the other cases cited herein or in the majority opinion, except the case of Patrick Farms, Inc., v. Superior Court, supra. In other words, if the granting of such an order was within the discretion of the trial court in the case at bar, it would likewise be within the discretion of the trial court in every other ease in which a litigant sought to take the deposition of a witness while a case is pending on appeal.
The majority opinion holds that the right to take a deposition under the provisions of section 2021 of the Code of Civil Procedure is not an absolute right, but is qualified by the existence, of the power of the court to exercise a reasonable control over the exercise of such right, and that such a power necessarily exists as one of the inherent powers of [273]the court in the orderly administration of justice. The fallacy of this holding, as applied to the case at bar, is that, while it is conceded that petitioner has the right under the above-mentioned section of the Code of Civil Procedure to take the deposition of the defendant pending the appeal from the order of dismissal, the trial court has denied him that right for no other reason than that the case has been dismissed. Such control by the trial court amounts to an arbitrary denial of the statutory right granted to every litigant. The majority opinion states: “To deny the existence of such power is to deny the power of the trial court to order the continuance of a deposition in ease of the illness of the witness or in case of the illness or the death of a party or of his counsel. ’ ’ In making the foregoing statement, the author of the opinion has apparently overlooked the proposition that before a penalty of any sort can be imposed upon a witness for his failure to respond to a subpoena or submit to the taking of his deposition, he must be cited for contempt of court, and upon the hearing of such citation, the court can purge him of the charge of contempt on such conditions as the court may see fit to impose. In other words, if the witness had justifiable excuse for failing to submit to the taking of his deposition, the court would clearly have the power to exculpate him from any charge arising out of such failure. This is quite a different matter than refusing to require a witness to submit to the taking of his deposition when his only request is that the taking of his deposition be delayed until the case is disposed of on appeal.
In my opinion a proceeding for the taking of a deposition is not a proceeding within the control of the trial court in the sense that it is administered by such court and is therefore subject to its discretionary power. For instance, the court has no power to specify the officer before whom or the place where a deposition shall be taken; neither has the court control over the form of the questions or the order or manner in which they shall be propounded to the witness. If the witness refuses to answer the questions propounded to him or produce documents which the party taking the deposition is entitled to have answered or produced, the trial court may be called upon to require the witness to respond, but in so doing the court is not exercising a discretion, but is simply [274]ruling on questions of law, which rulings are subject to review by an appellate court.
In my opinion, there is no basis whatever for the contention that a trial court should be invested with a discretion which it might exercise to relieve a witness from giving his deposition because the action in which the deposition is taken may not be brought to trial for an indefinite time, or may never be brought to trial, as no such discretion is provided for in our statutes.
It is obvious that the legislature did not see fit to include in the statutory provisions authorizing the taking of depositions, a safeguard against a litigant abusing the privilege thus granted, as the expense to which a litigant is subjected in the taking of a deposition is a sufficient deterrent to restrain the use of the privilege for mere personal gratification. This thought is clearly expressed by Chief Justice Beatty in the case of San Francisco Gas & Elec. Co. v. Superior Court, supra. At page 37 of the opinion in that case, he said: “The only substantial argument against this construction of the statute is that it enables a contentious litigant to subject the successful party to an action to great and unnecessary expense in the taking of depositions pending a frivolous appeal. This objection, however, does not seem to have been deemed by the Legislature sufficiently grave to prevent the enactment of a statute which easily admits of the same abuses, even when restricted in its application to pending issues, and to controversies which may never reach an issue. There seems also to be less reason to apprehend the inconveniences suggested when it is remembered that the party taking depositions in a case like this must pay the costs of the proceeding without hope of recovering them back except in the event of a reversal of the judgment or order, and not then unless the final judgment is in his favor. Moreover, the respondent may, in case of an appeal manifestly frivolous, ignore the whole proceeding to take new depositions, or if he deems it unsafe to omit the employment of counsel to attend and cross-examine, he may invoke the power of this court to impose an adequate penalty, on affirmance of the judgment, to recompense him for the unnecessary expense to which he has been subjected in consequence of a frivolous appeal. In view of these considerations it is not [275]to be feared that a liberal construction of. the code provisions in question will result in serious abuses.”
Furthermore, the 1939 legislature added section 1032a to the Code of Civil Procedure, which provides that the prevailing party may recover as costs, any expenditures he is required to make for a copy of any depositions taken in an action, which furnishes an added deterrent against a litigant resorting to the practice of taking depositions which are not necessary for the proper presentation of his case.
The majority opinion appears to confuse the procedure taken by petitioner in the case at bar with a contempt citation against the witness. In this, it is clearly erroneous, as the order prayed for in the trial court was that the witness be directed to give her deposition. If she thereafter refused to appear and be sworn, or give her deposition, and she was cited to show cause why she should not be punished for contempt of court for such failure, she would then have the right to present such defense as might be available to her, such as illness, or the necessity that she be at some other place at the time she was directed to submit to the taking of her deposition. On the hearing of such citation, of course, the trial court would have discretion to determine whether or not she was guilty of contempt of court, but such is not the situation in the case at bar. In my opinion, the witness furnished no justifiable excuse for her refusal to give her deposition, and it was the unquestionable duty of the trial judge to make an order directing her to submit to the taking of her deposition or be adjudged guilty of contempt of court.
In view of what I have stated above, the petitioner is clearly entitled to a writ of mandate and a peremptory writ should issue forthwith.