Huenergardt v. Huenergardt

WOOD, P. J.

Plaintiff appeals from an order (1) denying her motion for an order compelling defendant to answer certain questions which were asked during the taking of his deposition, and (2) requiring her attorney to pay $100 to defendant as attorney’s fees incurred in opposing the motion.

In 1949 plaintiff (wife) was awarded custody of the minor daughter of the parties in a final judgment of divorce. In June 1961 defendant (husband) obtained an order requiring plaintiff to show cause why custody of the daughter should not be awarded to him. On December 15, 1961, while plaintiff was taking the deposition of defendant, the attorney for defendant objected to certain questions upon the ground that they called for confidential communications between attorney and client, and he objected to other questions upon the ground that the information sought was immaterial and not within the issues. On advice of his attorney, defendant refused to answer the questions.

On May 16, 1962, plaintiff filed a notice of motion, under section 2034 of the Code of Civil Procedure, for an order requiring defendant to answer those questions. The notice of motion stated that the motion would be made upon the ground

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that the questions were “relevant to the issues herein and relate to non-privileged matter, and answers should be required, and that the refusal to answer such questions was without substantial justification.” It stated further that the motion would be based upon the notice, the pleadings and records and files of the action, the declaration of plaintiff’s attorney attached thereto, and the reporter’s transcript of the proceedings upon the taking of the deposition.

In his declaration attached to the notice plaintiff’s attorney stated as follows: In this action a final decree of divorce was awarded to plaintiff in 1949, and pursuant to orders of the court she had retained custody of their daughter, who is now 13 years of age. An order to show cause, dated June 1, 1961, was pending whereby defendant sought to obtain custody of the daughter. The pleadings and papers on file in the action are incorporated in the declaration by reference. Pursuant to a notice under section 2019 of the Code of Civil Procedure, the deposition of defendant was taken on December 15, 1961, before a notary public. On the taking of the deposition, the deponent refused to answer certain questions as appears in the deposition which will be filed at least five days before the hearing. The contents of the deposition are incorporated by reference in the declaration. A list of the questions which defendant refused to answer is annexed to the declaration, marked Exhibit A. Such questions were material and relevant to the issues therein and did not seek to elicit privileged matter, and answers thereto should be required. Said refusals were, and each of them was, without substantial justification. As a result of the refusal to answer the questions plaintiff necessarily has incurred attorney’s fees in the amount of $250 for examining the deposition, and preparing the notice of motion and making appearances thereon.