Tahoe Forest Inn v. Superior Court

Opinion

PUGLIA, P. J.

Petitioners are defendant Tahoe Forest Inn and its attorneys (hereinafter collectively referred to as defendants) in an action for personal injury brought by real party in interest (plaintiff) in respondent superior court. Defendants seek a prerogative writ annulling the effect of the superior court’s order imposing sanctions upon them

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for failing to produce their expert witness for a deposition noticed by plaintiff. We shall grant defendants relief.

On June 22, 1979, the trial of plaintiff’s personal injury action was set for December 3, 1979. On Monday, October 15, 1979, defendants served on plaintiff and deposited with the court a list of their expert witnesses. (Code Civ. Proc., §§ 2037, 2037.1; all further statutory references are to the Code of Civil Procedure unless otherwise indicated.) One of defendants’ listed experts was Richard Arden, who was identified as a resident of Sparks, Nevada.

On October 15th, plaintiff served defendants with notice that Arden’s deposition would be taken in the office of plaintiff’s attorney in Sacramento commencing at 10 a.m., October 30, 1979. There was apparently no further contact between counsel relative to Arden’s scheduled deposition until late afternoon of October 29th; at that time, defendants’ attorneys contacted the office of plaintiff’s attorney and advised that Arden would not be produced for deposition on October 30th because, among other reasons, the deposition was improperly noticed for Sacramento. Arden did not appear for the scheduled deposition and on November 13, 1979, plaintiff moved respondent court to impose sanctions upon defendants for their “refusal to make discovery.” After a hearing, the court granted the motion, ordering that Arden be barred from testifying in the action and that defendants’ attorneys pay the reporter his fee accrued in connection with the aborted deposition.

On November 27, 1979, defendants served and filed in this court their verified petition for extraordinary relief in which they pray, inter alia, that “A peremptory writ of prohibition/mandate be issued” to vacate, and restrain the superior court from enforcing, the order imposing sanctions. On November 30, 1979, plaintiff filed a verified return and answer to the petition. Application for the peremptory writ has been made upon due notice, a responsive pleading has been filed, and the matter is now at issue. We are therefore authorized to issue a peremptory writ of mandate without first issuing an alternative writ. (§ 1088; cf.