Agnew v. Superior Court

KINCAID, J. pro tem.

*

This is a petition for writ of mandate directed to respondent superior court requiring it to make its order directing John A. Cronin, a witness in a deposition proceeding, to answer certain questions. No answer to the petition has been filed by Cronin.

The witness Cronin refused to answer some 17 questions on grounds of immateriality and of a privileged relationship existing between himself as attorney and defendant C. N. Young as his client.

“ Mandamus is the appropriate remedy to secure the enforcement of a litigant’s statutory right to take depositions, and an appeal from a final judgment is neither speedy nor adequate where a trial court improperly refuses to order that a deposition be taken.”

(McClatchy Newspapers

v.

Superior Court,

26 Cal.2d 386, 392 [159 P.2d 944], See

Brown

v.

Superior Court,

34 Cal.2d 559 [212 P.2d 878].)

The pending action in which the deposition is being taken is by petitioner as plaintiff against Cronin, Young, Palumbo and others for damages for civil conspiracy and fraud, and for declaratory relief. (See

Agnew

v.

Cronin,

148 Cal.App.2d 117 [306 P.2d 527].) Petitioner, having stated causes of action against the defendants Cronin, Young and Palumbo, the question is presented as to whether defendant Cronin may now refuse to answer the foregoing questions. These questions relate to actions of both Cronin and Young in first delivering to petitioner a check of Young for $325 in payment of a debt and then stopping payment on it; in filing a verified answer,

[840]

with Cronin as notary, denying any indebtedness when in fact at least $325 was admittedly due; in calling Attorney Hardy to inform him of the debt due petitioner so that Hardy might levy execution on an outstanding judgment against petitioner at the same time concealing these facts from petitioner so that he would not be able to claim any exemption that might be available to him under such levy.