*1 No. 23764. Nov. 1978.] [S.F. BAUGUESS, Plaintiff, v.
IRA JAMES al., Movants and PAINE et Respondents; WEBSTER BACH, N. Appellant. MAXIM Objector *4 Counsel Bach,
Maxim B. Bach & Bach and J. Evans for pro. per., Timothy and Objector Appellant. Krause, Krause, Shell,
Marshall W. Baskin & Margolin, Ephriam Jr., Herbert M. and A. Rosenthal Truitt as Amici Curiae on Richey, behalf Objector Appellant.
Price, ness, Bur Price L. & Davis and Robert Davis for Movants and Respondents.
Opinion BIRD, C. J. suit, in was Appellant, plaintiff’s attorney personal injury $700 ordered the court trial in fees after by pay respondents a mistrial was declared in that action. This must decide whether the trial court exceeded that order. authority issuing
I Bach, Maxim N. the the Appellant, represented plaintiff personal suit of v. Paine. The trial until injury Bauguess proceeded uneventfully the second when to the day, appellant proposed reading deposition jury. that a attached to the be Appellant requested diagram, deposition, admitted into evidence. Extra of the had been made to copies diagram the use their the This pass jurors among following testimony. was the court and the clerk was told label the procedure approved by “6A M.” “6 When into copies through appellant requested go evidence,” the court “6 is in as are 6A evidence M.” replied: through read, out were was the Before the copies diagram passed deposition “Ladies and Gentlemen with the court’s to the explanation: jurors is a The has been attached to the back the diagram deposition diagram. use in . . These are Xerox in evidence. .
received your copies M. So exhibits 6A the are numbered They through deposition. following documents, those take are free write on each have a You copy. you conclusion the those exhibits notes. At the reading deposition At the bailiff, with the clerk. the time will by up deposited picked in the room will have those available case is submitted you jury you them, fine, want take if to mark on but deliberations. So you during your 6A M. A should be in the hands should have Exhibit look. You through 1. M should be in hands of the alternate. of Juror Number And Keep own You These track of exhibit. may proceed.” your copies collected after had read. were the bailiff been deposition diagram a sketch same was followed This prepared procedure regarding witness, a the sketch next copies highway patrolman. prepared M in the court admitted were through among passed jury “7A evidence, there the court instructed no jury, being objection.” Again, added.) free to mark on exhibits if want.” (Italics you “you’re events 1The was as follows: sequence no Your taken the “MR. BACH: Honor for exhibition’s sake I have liberty to run off thirteen of that sketch rather than have the officer redo it objection copies run with the into problems police report. there be any objection “Would “MR. DAVIS: to having jury— No, Let me take at it. I have a look no Your Honor. abjection << X evidence, And do are into offering “THE COURT: have you police report you or what— No, I And I to— BACH: don’t think that is a sketch. was going “MR. That’s proper. just *6 Want it or how do want to COURT: marked for identification as the original you “THE handle it? Could have there Officer? “MR. BACH: Yes. I see the copy you Do that for files you “THE COURT: need Officer? your sir, [y/c]A WITNESS: well I have to return it to the office. yes, “THE “THE COURT: we mark these as Plaintiff’s All Then don’t ahead and right. why just go was the next in order. What number have Madam Clerk? you 7 Your “THE CLERK: Honor. evidence, 7A M in there no through “THE COURT: being objection. “MR. BACH: Okay. copy Original - “(Plaintiff’s' 7A M exhibit number xerox EVIDENCE) ACCIDENT REPORT INTO ADMITTED 7A if like— “THE And M will now distributed you COURT: through BACH: it Your Honor. “MR. Appreciate A, A have and then COURT:—to the The in Seat 1 should jurors juror “THE again. M, the alternate M. having through *7 the between court and appellant.
The court was with that once particularly displeased appellant’s position an item had evidence, been admitted into counsel had not only right with the exhibit when hear the there you testimony. when the them then to returned to for “And bailiff be picks up they’ll given you, you use deliberations." during your your as an attack on to it. this examine but position Construing duty his constituted court informed that the position appellant powers, to the When failed his of court.2 change position, appellant contempt for mistrial. motion court respondents’ granted counsel
After the was defense attorney’s jury discharged, requested two of the aborted trial. The court fees days again expressed or other at indicated position, contempt disciplin- appellant’s displeasure order, the for two be in and continued matter days. ary proceedings might fees, the on for At motion attorney’s hearing respondents’ appellant first, he that the be heard since feared contempt charges requested the for be said in to motion opposition might anything him in the counsel used Appellant’s against contempt proceedings. the until the
further that be hearing postponed reporter’s requested On was The court denied both trial requests. transcript prepared. counsel, did not the motion the advice appellant argue the but renewed his that contempt standing request proceedings heard first. without fees submitted
The court declared the motion for attorney’s Thereafter, court remained mute. because appellant opposition $700 fees as a sanction. ordered appellant pay respondent would then The court reiterated its concluding: displeasure, “[What] to have me than in the world is make you just maybe happier anything in humble and a mistake eat a little admit that made yoú judgment pie it’s all I’m after.” not That’s happen again. going is, . . if take that the court no has 2“THE COURT:. Now you really position longer trial have virtue of control over this taken control by your stipulation you If into evidence and can now at the confidential notes of jurors. matters look go you I how has And then don’t see we can the trial. court lost total control. proceed so no we can if that’s proceed really your there’s way reasonably position. I I’m has control of the “MR. BACH: not the court lost taking proceedings. position not said that. have Are “THE COURT: these exhibits notes of the jurors? evidence, in those are “MR. BACH: What I have said is that exhibits are yes, at them. and I don’t think the court can us looking evidence preclude . . that is Mr. Bach your “THE COURT: That’s . And as as long position your position? have is no to continue the course of conduct there you point and you’re going And I’m forced with the trial. We can’t a case that try way. grant proceeding client. I’m this case in interest your mistrial. trying salvage time I’m from this Well I’m to assist the court there. willing “MR. BACH: trying exhibits, of 6 and 7. a new to the subject forward make stipulation regard not Mr. Bach you’re Your is that court can’t tell you “THE COURT: position court. You’re rules violating entitled look notes? You’re jurors’ that. of this when do you I’m “MR. BACH: that.” saying *8 634
When the resumed the week, the court hearing following again him conduct and expressed displeasure found appellant’s formally in direct for the court’s order” contempt “violating] regarding on which the had taken However, notes. diagrams jurors declined to time, at that impose penalty contempt noting had been $700 assessed appellant fees for already attorney’s mistrial. This award was characterized the court as to by analogous and restitution in a criminal case and as an probation to alternative “Now if Mr. Bach is not penalty contempt. that as an willing accept alternative to the then the court is contempt certainly prepared impose sanctions for as well.” This was taken the order contempt appeal $700. fees in the directing amount of appellant pay attorney’s
II The sole issue before this court is whether the award fees as a sanction for attorney’s misconduct was a appellant’s alleged exercise of the trial court’s proper authority.3
It has been the traditional in this for each practice country litigant to bear his or her own fees. (Prentice North Amer. Title Guar. attorney’s 618, (1963) Cal.2d 821, Corp. 381 P.2d Awards 645].) Cal.Rptr. [30 courts are the rather than by the rule. exception a court award Generally, properly only pursuant of the or This agreement parties statutory authority. principle 1021; codified in Code of Civil Procedure section as “Except fees are statute, specifically measure and provided mode of and counselors at law is compensation left to the attorneys agreement, case, . . . .” In the there express implied, was no parties present between the that would the trial court’s award. parties support agreement 3The order sanctions is imposing as a final order on a appealable collateral matter ( 499, (1975) directing payment money. Wisniewski Clary Cal.App.3d [120 176].) The order sanctions Cal.Rptr. directed imposing appellant personally pay $700. defendants The order also noted that had made an on his own appellant appearance action, behalf. he was not a in the main Although he was made a party of record in the collateral matter the court’s order. The order sanctions was a imposing final Thus, determination of that matter. was entitled to appellant (Code that order. appeal Proc., Further, Civ. have never contested respondents appellant’s standing the order. The order appeal a mistrial is not granting appealable Estate (e.g., 839, is, therefore, Bartholomae 332]) Cal.Rptr. before this court. did Appellant not seek review of the apparently order. 237, 240, re 10 Cal.3d fn. 1 Buckley 514 P.2d 68 A.L.R.3d
635 the award statutes has enacted several authorizing Legislature 4 certain fees to advance of generally public policies. attorney’s 125-128, 3275- Witkin, 1971) Cal. Procedure ed. (2d §§ pp. Judgment, - the award of However, which authorizes there no statute 46 v. Dimond (1956) cases. fees in (LeFave injury attorney’s personal do Some statutes 868, 858, P.2d 60 A.L.R.2d 939].) 870 Cal.2d [299 for conduct which the use of fee awards as sanctions authorize produces Proc., 2034 Civ. or Code (See, unwarranted § litigation. e.g., unnecessary fees sanction for the of as a award improper attorney’s [authorizing awards are assessed refusal to discovery].) Usually against permit witness, both trial and or but under certain circumstances courts are authorized to order counsel opposing appellate pay as a conduct.4 fees sanction for counsel’s improper party’s However, a no statute for fee awards as sanctions following provides a or a concedes mistrial either counsel party. Respondent against had to make such but contends that the inherent power point, an award.
Courts have drawn on two
of
distinct sources
power
justify
award of
fees:
derived from the historic
equitable power
power
25,
of
courts
v.
20
Serrano
Priest
Cal.3d
35
(see,
(1977)
e.g.,
equity
[141
315, 569 P.2d
and
or administrative
1303]),
Cal.Rptr.
supervisory
powers
which all courts
them
out
duties
enable
their
possess
carry
(Fairfield
113,
v.
246
Court
120
cf.
(1966)
721];
Superior
Cal.App.2d
Cal.Rptr.
[54
143,
285,
Bloniarz v.
Cal.2d
449
Roloson
70
147-148
(1969)
Cal.Rptr.
[74
P.2d
the latter
has been
221]). Although
power
recognized by
128,5
in Code of Civil Procedure
it exists
section
Legislature
apart
2034,
(d)
an
4Code
Civil Procedure
section
subdivision
authorizes
award
an
who
answer
attorney
fails to
against
wilfully
interrogatories
(Weinkauf
(1966)
36]);
Court
express statutory authority. supra, *10 147-148; Witkin, see Courts, Cal. Procedure ed. 1970) pp. (2d generally 116-118, 385-388.) §§ pp.
Courts have used their inherent in limited equitable power situations to award fees when was it warranted the attorney’s by equities of the case. For one who a fund common example, preserves may recoup fund, his or her fees that thus the burden attorney’s allocating all those who are Also, to share in the fund. one who as a among acts to further one “private and attorney general” important public policy, who confers a substantial on a class, benefit defendant or a be large may awarded Priest, fees. Serrano v. Cal.3d generally supra, at cases, In these the 35-47.) fee award serves a dual It pp. purpose. the allocates financial burden in an and manner litigation equitable individuals with an incentive to which benefits a provides bring litigation larger group.
This court has moved the bases cautiously expanding nonstatutory on which awards of Serrano, In be may predicated. were awarded after careful a and only analysis finding compelling reasons of warranted such an award. public policy Specific guidelines the exercise of the trial court’s to make such awards were set down. power at (Id., 43-47.) pp. case, the the fee was award not a foster present designed kind of beneficial as in Serrano.
particular socially litigation approved Further, the of the case do not the burden to equities require shifting fees incurred for the two the appellant respondents’ attorney’s days aborted trial. not was the Appellant solely responsible events the declaration of the mistrial.6 this case does leading Clearly, 6The court created the initially situation led to the eventually mistrial. Apparently the court believed that items erroneously only admitted into evidence could be actually However, the if the passed among jury. had been admitted original designated copy evidence, the into could have been viewed without copies first been by jury having into admitted evidence. The court was it correct when warned the their jurors keep However, evidence, notes confidential. when the court admitted them into it breached It is clear that confidentiality. document admitted into be any evidence at may inspected 638; Cal.Jur.3d, Evidence, time counsel. Dalton 40 Cal. any |(Pope record, well, 388.) As a of the judicial exhibits p. part as may inspected by public (Estate absent some lawful order to specific Hearst contrary. case, 782-783 In this there was no order. such The court’s statements were jurors’ notes an admonition to the that the concerning simply jurors notes, retain, which were were to be This was they permitted kept confidential. warning M) (exhibits when 7A given were taken from the copies diagram through jurors *11 sanctions, such of this state have disallowed courts generally appellate of (See, based on a inherent awards e.g., theory supervisory power. of to attend v. 46 499 Wisniewski party Clary, supra, Cal.App.3d [failure 55 v. Redman conference]; (1976) settlement Young mandatory defense, to faith failure of 827 party Cal.App.3d Cal.Rptr. [128 86] [bad contra, 56 (1976) Santandrea Siltec trial]; Cal.App.3d Corp. appear context, Even in the where 525 629].) attorney’s discovery Cal.Rptr. [128 section as Code of Civil Procedure fees are sanctions under permitted 2034, $1,000 not been in has award attorney’s purely punitive v. End 252 982 allowed. (1967) Cal.App.2d Cal.Rptr. [61 52] (Welgoss conduct to dilatory occurring permitted punish plaintiff’s [sanction a motion to to defendant’s seeking compel].) prior Court, 246 on rely supra, Respondents chiefly Fairfield 113, However, 120. slender reed that provides scarcely court would have this
support sweeping power respondents fees or held a trial court award attorney’s approve. Fairfield order if a refuses to sanctions obey impose appropriate further to That award was as answers compelling interrogatories. upheld However, it was within the exercise the trial court’s inherent power. of that case that Code because of somewhat novel circumstances only award, it Civil Procedure 2034 did not authorize the and was section the Civil consistent with the intent clearly Legislature’s enacting Proc., does not Act. Civ. 2016 et case § (Code present Discovery seq.) involve these factors. to use both and unwise to trial courts
It would be unnecessary permit from those situations authorized statute. fee awards as sanctions apart conduct is of court or If an disruptive processes disrespectful 786, 1, (1974) 11 Examiners Cal.3d Cal.Rptr. 7In D’Amico v. Board Medical [112 rule to the to consider a further 10], exception 520 P.2d declined equitable who has raised issue whether one been required fees. That case regarding attorney’s be awarded “vexatious and conduct” of another party may because of oppressive litigate fees to absent statutory authority. penalize party, itself, as the misconduct the court there ampié power punish Moreover, unlike the advocated respondent, power contempt. has a court’s inherent been tempered by power punish contempt Proc., Civ. enactment to (Code safeguards. legislative provide procedural 8, 1209 et see In re Cal.2d 11-13 § seq.; McKinney 257, 580, re 274-276 L.Ed. 972]; 447 P.2d cf. In Oliver U.S. 682, 694-696, is the S.Ct. Among safeguards opportunity, out the immediate view and in cases where the occurs contempt court, Code of Civil of the pursuant presence disqualify judge Witkin, 5. Procedure (2d Procedure section subdivision Cal. Courts, has ed. 1970) 341-342.) § pp. Additionally, Legislature $500 fine. for civil to five and a limited jail penalty days Proc., 1218; In 70 Cal.2d at Civ. re (Code p. McKinney, supra, result such due would were Absent serious safeguards, process problems trial courts to use their inherent lieu contempt power, power, fees to an misconduct punish by awarding opposing party counsel. *12 to misconduct
The use of courts’ inherent
by awarding
punish
power
the
and
of
bar
fees
the
thereby
independence
may imperil
use
In
trial courts to
their
undermine the
cautioning
adversary system.
care,
stressed the
with
this court has repeatedly
contempt powers
of
to
a
advocate:
counsel
be
importance
vigorous
permitting
“ ‘He has a
to
a
and
press
legitimate argument
protest
right
Indeed,
is
‘fundamental
so essential
this
an erroneous ruling.’ [Citation.]
‘a
that mere
bar’...
in
interest of the public maintaining
independent
if
him
of court. Even
act
counsel cannot render
mistaken
contempt
by
it in
untenable,
is
counsel
a
urge
good
may properly
legal proposition
successful,
faith;
to be
do
even
he
not
he
so
may
expect
may
though
or to wilful
course,
he
to deceit
of
that
does
resort
provided
”
v.
Court
(Smith
of the
obstruction
process.’
orderly
1,
547, 560
The advocated respondents power potentially If court were to even than the contempt. scope power sweeping sanctions in the hold trial courts have the inherent power impose misconduct, trial would courts form of given alleged to abuse. In and a without limits potentially subject power procedural Redman, 838-839, under analogous supra, Young action, facts, for us the Court observed “absent legislative Appeal such sanctions court has inherent that the trial to declare power impose of the court with the sweeping takes expanding power giant step unbridled, court, unfettered and in the trial Such ramifications. power could cancel out and any without guidelines, safeguards appropriate proliferation benefits derived judicial by generating process sanctions court to such . . of the trial . impose power [A]ny appeals. branch be created appro- should government legislative in- and following thorough guidelines developed safeguards priate investigation. [Fn. omitted.]” depth which the exercise such case illustrates dangers present would “without pose. safeguards guidelines,” appropriate
power, it awarded to ostensibly compensate respondents, appears Although the sanctions were more the record that by appellant’s vigorous prompted once that he had a examine assertion diagram copies right evidence, and had been admitted into his refusal apologize. they addition, not have which the court followed procedure trial had not due of law. afforded process Although judge appellant misconduct, he heard the sanc- observed appellant’s alleged personally record but on the motion. The was based not on tions actual hearing Further, of the events. somewhat memories imperfect participants’ counsel, did not the award the advice of his contest following appellant, because the court would not hear it record indicate that thé court’s on the first. remarks Finally, allegation *13 to an of fees as alternative viewed penalty imposition However, for of court. that could be penalty imposed Proc., (Code Civ. was excess of that assessed contempt. permitted circumstances, the order cannot Given these this court 1218.) approve § of the trial court. of statute that awards
The has by provided Legislature However, the situation a court in situations. granted by specific within case is one them. This case does not fall presented to the limited number of nonstatutory exceptions judicially recognized section 1021. To carve out another Code of Civil Procedure judicial due such an award would serious process pose exception permitting reasons, the award this court holds that For all of problems. a mistrial exceeded proper following respondents inherent
limits of the trial court’s power.8 56 v. Siltec Corp., Cal.App.3d Santandrea disapproves supra, 8This specifically is with this the extent that it inconsistent opinion. 525 to 640
The order fees to directing appellant pay attorney’s respondents $700 amount is reversed. Tobriner, J., Mosk, J., Richardson, J., J., Manuel, Newman, J., concurred.
CLARK, J. I dissent. to hold—without the issue—that an majority purport confronting
order on sanctions an for misconduct imposing attorney resulting mistrial an action he in which in a appears only representative is an order in that action. appealable capacity, of such state the rule final. support proposition majority order on collateral matter is directing payment money appealable, Wisniewski v. 46 (1975) 499 citing 176], Clary Cal.App.3d [120 Cal.Rptr. (Ante, However, fn. 3.) Wisniewski stands p. only proposition an such order is to the action. The appealable by aggrieved party issue is here not whether the is order but whether the appealable attorney has take the in his individual An standing appeal capacity. appeal may be taken Proc., an action. (Code Civ. Bach is only “party” § not a is not a and no order has been party—he designated party proper made him into the action. Bach cannot assert an bringing simply appeal in this case. 6 Transamerica (1935) Rogers Corp. Cal.App.2d P.2d 635]; Butchart v. (1929) Moorhead P. [44 Cal.App. [282 23] [a dismissed from an action cannot Shearer v. United party appeal]; Theatres P.2d 934] [a California an action not named in a cross-action cannot order from an appeal the cross-action].)1 Bach’s affecting only proper remedy application either writ of Proc., review Civ. (Code 1068) writ prohibition circumvent the of sanctions claimed to be in excess of imposition applied (Lund Court Cal.2d 709-710 jurisdiction *14 891, 394 P.2d The 707]). should be Cal.Rptr. appeal, accordingly, dismissed.2 novel, the of this 1Although circumstances case are are not unlike those in a they sanctions, situation when are
discovery imposed an who refuses against or attorney Proc., (See otherwise fails to with a order. Code comply discovery Civ. An an does not lie from order appeal made the of furthering or purpose discovery Court, (See sanctions refusal to make granting Lund v. 61 discovery. Superior supra, 698, 709; Cal.2d 451].) 764 Friedberg v. Friedberg 2It be noted dismissal of the herein is not because Bach appeal merely required an seeks from order the to be appeal hold void. It can no be majority longer argued that because trial court lacks make order a court jurisdiction particular reviewing sanctions, the the order Bach imposing Even if may appeal lacks trial court impose the authority further err concluding majority is a fuller determination to such Bach. Essential sanctions such against Bach’s the circumstances facts of material attending preceding exposure misconduct. into offered sketch of a consists
Exhibit patrolman’s highway court he had advised the the Bach in behalf of evidence Bach plaintiff. we can and individual exhibit for the certainly of the jurors, made copies the the court Thereafter with the exhibit. his urged assume familiarity of the sketch notes on their to make confidential during copies jurors done that the had court observed of the jurors testimony patrolman. but also so testimony during reading only during patrolman’s the court admon- witness. of an unavailable Thereupon deposition of the as to the ished clear and confidentiality language unambiguous notes; not to be shared . are and are “. . notes they your personal such . . . but until the case is submitted with until finally you anyone notes, shown to own not to be time any your they’re your personal . . . fellow [K]eep neighbors, anybody. jurors, your spouse your them are not to share mind are to own counsel you you keep your in Bach’s This was made in admonition open anyone.” presence. is Bach did not examine for the
It clear exhibit casually purpose information contained in a received exhibit. After ascertaining duly 7 and 7A 7M had been recessed he obtained exhibits through proceedings exhibits, clerk, in the all from the sat courtroom observing examining confidential notes of individual jurors obtaining purpose he him a In fact information which competitive advantage. might give *15 court, the court could have “I do think to the Bach said: 3In his stating position view the state of this record.” at notes in of me from precluded looking 642 of the court and the to which he
procedures disingenuous explanation continues to adhere.
I am unable to discern the which the precise upon ground majority conclude trial court exceeded its in these circumstances. jurisdiction that Bach is innocent of They 636, suggest misconduct fn. (ante, 6) any p. and was in no restrained notes because way examining jurors’ admonitions had not been directed confidentiality specifically If him that is the (id). then the ground majority opinion, majority fail to Bach’s stated and obvious motivations. recognize
Most of the discussion the award of majority’s following concerning fees is irrelevant to issue this is not a case attorney presented—clearly an award of the traditional sense. What involving attorney issue is the inherent trial court to and control authority supervise reasonable restraints on counsel proceedings by exercising practicing before it. The conclude that because a an court can hold majority there is no need for further controls—thus attorney voiding the lesser sanctions. power impose court of record has to its
“[Ejvery powers requisite proper functioning as an constitutional . . . .” independent department government v. Roloson (Bloniarz 143, 285, 70 Cal.2d 147-148 (1969) 449 Cal.Rptr. [74 P.2d 221]; see also Mow re r v. 223, Court Superior Cal.App.3d The exercise of this 125].) inherent is limited Cal.Rptr. power [83 only by sound discretion. Fosca Oil Co. Bailey Cal.App.2d 474].) is not tool at the court’s Contempt only A court suitable or mode of disposal. “any adopt process proceeding . . . which to the of” most conformable the Code of may appear spirit Proc., 187; Civil Procedure. Civ. (Code § Kent Court (1951) P.2d While there is no legislative case, authorization for the sanctions in the instant imposed Legisla ture has enacted provisions. requiring defaulting attorney pay an when such attorney opposing party attorney disrupts or orders. judicial process by failing refusing comply discovery Proc., Civ. 2016 et view such cannot (Code it seq.) legislation said the almost identical sanctions under the court’s imposition inherent contravenes court is powers any legislative policy restricted to before it. contempt powers supervising proceedings situation,
In an wherein the court noted there no was analogous authorization for aof an order legislative imposition sanction—including for one fees for an requiring attorney attorney pay opposing *16 the refused first discovery party comply particular party—when ‘to to its orders, the held: court has obedience court compel “Every power before orders and in an action or process’ proceeding pending judgments, effect, even it, use all means to its into and to necessary carry jurisdiction are out in the code.” if means those (Fairfield specifically pointed 721].) Court Cal.Rptr. Cal.App.2d [54 case in which sanctions another money requiring payment has the were the court stated: court upheld, “Every opposing the and to of matters before it inherent power regulate proceedings Sanctions the issues effect an presented. orderly disposition [Citations.] for in some situations but sanctions are provided expressly [citations] covered been in situations which are not have also approved expressly . . . . no or rules. . . direct order trial Although statute [¶] the the that the time of both the court was facts view disobeyed, support counsel was wasted. The exercise of the court’s court and of opposing [¶] the for the conduct of court’s business inherent power orderly provide a matter in the sound discretion the trial court. Such a vested legal has decision is to reversal where there been an abuse subject only 529-530 v. Siltec discretion.” (Santandrea (1976) Cal.App.3d Corp. Cal.Rptr. it the instant case cannot court in abused Certainly argued of modest discretion sanction the amount by imposing attorney two The well that a for the of trial. court could consider days penalty would not imposed damaged party compensate no when the of two wasted For that reason there is abuse expense days. court elects to exercise its inherent sanctions rather than power impose fix for Bach’s The cases only reported support penalty contempt. to no case in
trial court’s action—the referring point supporting majority their authorities.4 judgment ignore disapprove existing should order sanctions not appeal imposing being appealable, be dismissed. 86], Redman 4The on Young majority rely trial those sanctions authorized that a court should impose only proposition However, case is that the court abused its discretion in Legislature. holding (Id., sanctions. particular p. imposing notes free to exhibits if want. If want take you any “And mark on these you you’re These exhibits were not collected from the at the close of the jury read, After court, another was patrolman’s testimony. deposition had been notes on the asked if jurors observing taking diagrams, any wanted note for the remainder of the trial. The court stated: juror paper “But let me advise take.notes, that it is all but these you right you are notes and not to be shared with until the your personal they’re anyone case is submitted to and then refer to them finally you, you may your deliberations, but until such time notes, own not to they’re your personal be shown to be shown to fellow anyone, any your jurors, your What we do in trials is we often spouse your neighbors, anybody. long out notebooks with the seat number on them and then pass spiral jurors’ collect them each them back each On short trials night give morning. that, we don’t but entitled to take own notes and go through you’re your them. But in mind are to own counsel and keep keep you keep your you are not to share them with anyone.” The court then collected the exhibits of the highway patrolman’s sketch, on which the had taken notes. Note was jurors paper supplied were allowed the court to take their notes jury. Although jurors home, were admonished to the notes confidential. they keep After the trial had recessed for the and while the was evening judge matters, with other asked of the clerk engaged appellant permission examine exhibit, exhibit 7. He took the looked at it and returned briefly, it. Before trial commenced the next remarked that his clerk day, judge had informed him that had looked at certain exhibits on which appellant had taken notes. that he was entitled to jurors Appellant responded do so since the exhibits had been admitted into evidence. and raised the of a mistrial. disagreed, reprimanded appellant, possibility maintained he had done Appellant steadfastly nothing improper, there had been no error, case and that the if prejudice respondents’ could be if cured counsel were to view the notes as well. any, opposing Defense counsel refused and then moved for a mistrial. An acrimonious discussion ensued
Notes
the bailiff. The related notes were to warning to the retain not the they copies and was not at directed counsel. diagram, fit within general exceptions any recognized equitable shall for its own that each attorney.7 rule pay whether, decide is this court must The remaining question fees as a sanction award absent may statutory authority, Pursuant to this a court under power, power. supervisory orders, with its action to secure take punish compliance appropriate Roloson, to control its (Bloniarz supra, contempt, proceedings. as few fee awards statutes 147-148.) Cal.2d Although permit pp.
notes to the court he had a to examine later right jurors’ argued direction to the on 7A 7M exhibits notwithstanding through appearing view of the court’s admonition as to confidentiality contrary. notes, in Bach’s Bach’s misconduct delivered that same day presence, to examine His claim he exercised cannot merely disputed. right was to his own admission that his exhibit refuted by purpose gain I that the notes. am distressed from the majority intelligence jurors’ condone both Bach’s orderly astonishing imposition upon appear order. Phelan v. validity to judge lacks jurisdiction appellate P.2d (1950) 35 Cal.2d Court