Bar Assn. of San Diego v. Superior Court

CURTIS, J.

On September 12, 1923, the petitioner filed in the superior court of said county an accusation against Abram Rosenthal, an attorney at law, charging said Rosenthal with a violation of his duty as such attorney and praying for an order of said court that his name be stricken

[591]

from the roll of attorneys and counselors of said court. The said Rosenthal appeared and filed his answer to said accusation. Thereafter the said Bar Association served a notice upon the attorneys of the said Rosenthal that it would on October 16, 1923, before a notary public named therein, take the depositions of certain witnesses. With said notice there was served an affidavit by the attorney of the said Bar Association, complying in all respects with section 2031 of the Code of Civil Procedure. After said notice was served as aforesaid, and on October 11, 1923, said Rosenthal served upon the attorneys of petitioner a notice of motion to continue and postpone the taking of said deposition on the ground that said Rosenthal was physically unable to be present and confront said witnesses; that he was entitled to be present for the purpose of consulting and advising with his counsel in the cross-examination of said witnesses, and that he could not with safety to his health proceed with the taking of said deposition on said sixteenth day of October, 1923. With said notice said Rosenthal served and filed affidavits of himself and two physicians as to the state of his health. On the hearing of said motion the said superior court made an order continuing the taking of said depositions from October 16, 1923', to November 22, 1923. Whereupon petitioner instituted this proceeding for the purpose of reviewing said last-named order and to have the same annulled by this court.

We do not understand that it is seriously contended that in a proceeding of disbarment it is the absolute right of the accused to be present and be confronted by the witnesses. It was held to the contrary in a recent decision rendered by this court.

(In re Morganstern,

61 Cal. App. 702 [215 Pac. 721-725].)

It is contended, however, by respondent that a proceeding in an action to take the testimony of a witness before a notary public or other officer authorized to take the same is a proceeding in the court in which said action is pending, and therefore, like all other proceedings therein, is subject to the reasonable control of said court.