*1 Dist., One. Jan. No. 24002. Fourth Div. 1982.] [Civ.
M.C.A., Appellant, Plaintiff and CALIFORNIA, Respondent. THE STATE OF Defendant *2 Counsel
Charles L. and & Link Goldberg Goldberg for Plaintiff and Appellant. Clark, Donald Counsel, Harmon, L. County Jr., M. Lloyd Chief Depu- Counsel, ty County Counsel, Greer D. Knopf, Deputy County Defendant and Respondent.
Opinion WIENER, M.C.A, The issue in appeal this J..— whose identi ty protected under the federal witness is whether program, the trial court ruled correctly his motion for denying reimbursement of ex penses fees after attorney he resisted successfully efforts under Penal Code section 1334.21 to his attendance before compel a Florida no jury. Finding or common law basis statutory to accommodate his request, we affirm the order.
In M.C.A.’s first we reversed the appeal, section 1334.2 order com- pelling appearance before the Grand Jury Broward County, Florida, and “remanded for further proceedings consistent with the part 1Section 1334.2 California’s version of the Uniform Act to Secure the At Act). (hereinafter tendance of Witnesses from Without a State in Criminal Cases Code, (See 1334-1334.6.) statutory generally Pen. All references are to the Penal §§ specified. Code unless otherwise (In here to recover costs on re expressed. Appellant appeal.” views remand, 1980) [unpub. M.C.A. 4 Civ. 22150 (Apr. opn.].) Upon denied the State of Cal M.C.A.’s motion for reimbursement from ifornia for all fees incurred at both the trial and expenses *3 appellate levels.2 This followed. appeal that California courts have precept
We
the familiar
begin by noting
statute or an
fees
on the basis of
only
awarded
?consistently
attorney
(See
v. Paine
established
law doctrine.
generally Bauguess
common
Code Civ.
Recognizing That civil section 1987.2.4 on Code of Civil Prоcedure penses solely (Fab statute, proceedings in criminal discovery application of doubtful (1980) 104 Court ricant at expenses, including the trial court to award
Cal.Rptr. 894]), permits fees, substantial who in bad faith or without one torney against quash subpoena. makes or a motion to justification opposes where the Legislatures the statute’s here application We question for ob- procedure have California and 48 other states formalized Act. Unlike witnesses to Uniform pursuant out-of-state taining 1985 and Civil Procedure sections of Code of administrative process without notice to a blank subpoena the clerk to issue permitting mechanism to as- structured witness, a carefully the Act provides issues order witness before hearing sure notice and fees; $1,334.85 $9,712.50 attorney witness requested reimbursement for 2M.C.A. hearings; attorney the local of M.C.A.’s Florida at fees to secure the attendance $91 pleadings and motions. photographic reproduction trivia, Legislature has made our reveals the penchant for count 3For those with a Olson, (See Brosna appearing in 15 codes. attorney in 160 statutes provision for fees Judge Trial and Trial Perspective Margolin, Attorney & Fees han from Matеrial.) Program Seminar Bar Attorney Joint CJA/State making order “In an provides: section 1987.2 Civil Procedure 4Code of 1987.1, the court Section (c) 1987 or under of Section under subdivision motion made making expenses incurred reasonable of the award the amount may in its discretion fees, finds the mo if the court motion, attorneys’ including reasonable opposing the or one or justification or that without substantial in bad faith or opposed tion was made oppressive.” requirements of the more of the to set a hear- judge Section 1334.2 requires attendance.5 compelling Witnesses may the witness to appear. and make an order ing directing the appear- establish whether presented then be called and evidence him to and whether necessary compelling ance of the cited witness the order will cause him undue After hardship. another state entered, to appeal. either side has right proce- civil subpoena between the normal The manifest differences Act compel the Uniform specialized provisions dure and of Civil Procedure did not intend Code that the Legislature conclusion Act. To be- under the Uniform to cases apply arising section 1987.2 fees with, expenses here seеks an award of M.C.A. gin authorizes a court Section 1987.2 only from the State of California. *4 a subpoena who seeks award against party litigant make such an seek to subpoena California did not without adequate justification. M.C.A.; hearing and conducted request it Florida’s merely processed on the issue. the California
Second, that the Act precludes it is also significant of the out-of- the reasonableness of the order court from questioning judge any in provides pertinent part: in “If a of a court record 5Section 1334.2 state, provision commanding persons for within that state by which its laws has made state, testify a certificate under the seal of the court that to attend and in this issues court, grand jury in the or that there is a inves- prosecution pending there is a criminal tigation, prosecution is a material witness in such or person that a within this state grand investigation, presence required specified will be for a number jury and that then, judge days, upon presentation of the certificate to a of a court of record the the is, hearing by county place for a shall be fixed person in which the a time and hearing. judge directing appear to at the and he shall make an order the witness hearing, judge necessary, witness is material and “If at the determines that the compelled be to attend and tes- hardship that it will not cause undue tify of the to the witness to state, grand jury investigation the other and that the laws prosecution in the state, pending or in which there is a inves- prosecution in which the is give protection from and service of civil and criminal tigation, will to the witness arrest ($0.10) of ten cents for each process and will furnish in advance to the witness the sum trip round necessarily if the Witness elects surface travel or the minimum mile scheduled airlines fare traveled twenty ($0.20) necessary mile for surface travel at plus cеnts travel, flight per twenty and a diem of dollars either end of the if the witness elects air ($20) day required he is to travel and attend as a witness and that for each payment will order the judge appear of the court in which the witness is ordered to required to attend the court day law for each the witness is witness fees authorized judge which of the any expenses additional of the witness plus reimbursement for necessary, find reasonable and he court in which the witness is ordered to shall attached, directing the witness to subpoena, copy with a of the certificate shall issue a pending, or where the prosеcution court where the attend and is, hearing any investigation place specified subpoena. in the such jury at a time and of all the facts stated therein.” prima shall be facie evidence the certificate The court the certificate for attendance a witness. Act state issuing the court the certificate to direct the witness to receiving ap- mandates view, at a at a time and fixed In our it pear place judge. hearing intended assessment of fees and ex- unlikely attorney Legislature the fisc of this state in situations where the penses against California did more than its nothing pеrform statutory duty.6 even we Finally, theory were M.C.A.’s that California accept may be with faith on charged bad based the trial the sub- court’s issuance of poena, an order which this appeal, court later reversed on we would still find section inapplicable.7 purpose 1987.2 of the fee provi- in that sion section compensate potential witness for attorney fees incurred in moving quash issued fees which subpoena, would have been incurred but bad faith. issuing party’s Proceedings Act, however, under the require issuance of the hearing before subpoena. of the outcome of Regardless a reluctant proceeding, witness incurs expenses necessarily issuance of sub- resisting This poena. inevitable reflects cost thus the nature of the proceeding not, contends, as M.C.A. a court’s bad It faith. would indeed be contrary of both underlying purpose statutory schemes assess California when it has only attempted, both through legislation ju- *5 action, dicial to assure its residents notice and an to be opportunity heard before a resident to ordering appear as a witness out state. of
We therefore conclude the Legislature did not intend of Civil Procedure section 1987.2 to to under aрply proceedings the Uniform Act.8 Laws, surprising 6It also is not that the Commissioners of Uniform to the sensitive realities,
political
propose
requesting
attorney
did not
be liable for
the
state
fees.
provision
permitting
Such
in effect would
provision
have amounted to a carte blanche
receiving
request
the
for
of a
attendance
witness to determine whether the re
questing
provision
state should bear that
burden. To
included
financial
have
such a
chilling
among
indeed
upon
good
cooperation
would
have had a
effect
the
the
faith
states essential
effective
of
operаtion
the Act.
inability
precedent
7We
any
requiring
pay
note our
to locate
state to
costs be
judge acting
within
ruling, particularly
cause
a trial court’s erroneous
where
jurisdiction
liability,
he
scope of his
is immune from
even where
acts in error malicious
331,
349,
339-340,
(See
ly.
Stump
(1978)
L.Ed.2d
Sparkman
435 U.S.
357-358 [55
1099].)
S.Ct.
98
attorney
to
and costs-
appeal,
8On
M.C.A. for the first time claims
fees
.entitlement
legal
litigant
reject
request
We
for
is no
to the “vexatious
doctrine.”
his
there
(See
Examiners
application.
or factual basis for its
D’Amico v. Board
Medical
786,
4 Witkin,
1,
(1974)
Cal.Rptr.
11 Cal.3d
520 P.2d
Cal. Procedure
27 [112
(1981 supp.) Judgment,
p. 211.)
§
As to M.C.A.’s
costs on
first
we
that his
request
appeal,
for
note
failure to
with
complied
requirements
have
earlier
of Code of Civil
Procedure
fatal
dis-
section 1034
because
trial court retains
(See
cretion to allow
to
timely.
relief from failure
file
Wilson v. Hinkle
67 cert. den.
731],
Disposition relief from the is modified to M.C.A.
Judgment permit request Code of Civil Procedure section 1034 filing 10-day requirement modified, first As his costs appeal. judgment order recover on appeal. its own costs on this party affirmed. Each to bear Work, J., concurred.
STANIFORTH, respectfully P. J.I dissent. Acting find in the Act to Se- can no Uniform majority specific authority Without State in Criminal cure the Attendance of Witnesses from feеs, (the Code, Act) (Pen. 1334 et seq.) Cases Uniform § be forth- therefore concludes none was intended Legislature negative on construction process statutory coming. focusing essence of this case. M.C.A. misses factual implication, majority with- He was appear. an oppressive subpoena—to order—an suppressed fault, was not a person Act He proceedings. out enmeshed wit- potential crime a bystander—a of or accused of a but suspected proceedings compelled to be ness—sought Florida. *6 of these sig- to take full legal cognizance fails majority only plain language also the disregards facts but undisputed
nificant without section 1987.2 which in of Civil Procedure contained Code criminal, or civil or the of the qualification proceedings, as to nature expenses fees and reasonable parties, authorizes the award of attorney or faith oppressive an bad quashes to successfully a who party subpoena. order “In an making 1987.2 provides: of Procedure section
Code Civil (c) un- or of Section 1987 made under subdivision to motion the of in discretion award amount 1987.1, the its may court der Section motion, includ- or opposing in making incurred reasonablе expenses made or fees, finds the motion was if attorneys’ reasonable ing in or that or opposed bad faith or without substantial one justification more requirements subpoena oppressive.” of of
I The motion to a in quash subpoena referred to Civil Proce- dure section 1987.2 is authorized under Code of Civil Procedure section 1987.1 which a provides part: “When pertinent subpoena requires court, court, attendance of a witness ... before ... motion upon witness, made or the reasonably own by party upon court’s heard, motion after counsel notice and an to be giving opportunity may make an it, order quashing subpoena or direct- entirely, modifying ” ing compliance with it upon such terms or conditions....
The “subpoena” referred to in section 1987.1 of the Code Of Civil Procedure is defined Code of Civil specifically Procedure section 1985 as follows: “The process which the attendance a witness required is the is a writ or subpoena. It order to a directed and person his requiring attendance aat time and to particular place testify as (Italics added.)1 witness....” case, Florida,
In the instant the State of through and the State of California, sought to compel attendance of M.C.A. the Flor- before ida grand jury pursuant to proceedings under the Uniform Act. 1334.2, Pursuant to Penal Code section once a certificate from a judge record Florida is presented superior court in the County San Diego seeking require the attendance of a witness in Diego San before a Florida the San Diego Court shall fix a proceeding, time place and for the hearing and “shall make an order directing witness to at the appear hearing.” provided general, 1The definition ordinary, section 1985 consistent with the historic use of process the term. A witness to cause a “[t]he
give (Black’s testimоny” (4th 1951) 1); p. Law Dict. ed. process by col. “[t]he which the attendance of is required... a witness It is a writ or order to per directed son, requiring (3d (Black’s attendance ... aas witness” Law Dict. 1933) p. 1); ed. penalty, usually col. an by contempt order with pro exacted *7 ceedings, (see, 236). for its Ops.Cal.Atty.Gen. disobedience In this the case both meaning ordinary statutory leg of term the and are the “In definition same: order that effect, given islative intent regard be a statute should be due the construed with for meaning ordinary language of harmony system the used and in whole with the of law of (California which it is part.” a State Restaurant Assn. Whitlow 58 Cаl. App.3d 824].) 347 [129 court, is to de- required At the hearing superior judge before will necessary termine that the witness material and and it not cause to be- testify undue to the witness to be attend and hardship compelled fore the of state. Once the demanding judge grand jury satisfied met, the statute these two have been instructs requirements attached, di- to “issue a with a judge subpoena, copy certificate of where the testify the witness to attend and in the court recting is, at a prosecution investigation or where the pending, jury is. (Italics added.) In in- place time and spécified subpoena.” case, Gilliam) a initially stant fоund M.C.A. was (Judge trial hard- and witness and it would not cause undue necessary material Florida him to to travel and before ship compelled testify to be to the subpoena pursuant then issued a he grand jury. Accordingly, terms of Penal section 1334.2. to this action as an “or-
The utilized the court referred language by der,” Act and in Gilliam directed Uniform by yet Judge Penal Code section language issued a The subpoena. substance of at this point 1334.2 authorized the issuance a expressly “subpoena” of Thus, by Judge the misnomer Gilliam in the not an “order.” procedure, appeal. resolution of the instant should affect the Furthermоre, sec- in Code of Civil Procedure the definition contained in the of taken the court covers the action type tion 1985 expressly di- was “a writ or order Judge instant The issued Gilliam case. order a time particular a “his attendance at rected to and person” required given the name as witness.” place testify Irrespective was, substance, action, as in Code Civil it a subpoena defined 1985. Procedure section de- section 1334.2 to to Penal Code pursuant conducted hearing witness, necessary a material
termine whether M.C.A. was at- compelled him to be it hardship whether would cause undue to the hearing identical tend and before Florida under authorized quash subpoena to motion to conducted fact, purposes Civil 1987.1 of the Code of Procedure. section of Civil Procedure the two of the Code of section 1987.2 application are hearings indistinguishable. tecum, deter- the court must duces
At a hearing quash has made a showing seeking discovery mine whether the party and whether the items of said matters production cause for the good
233 (Johnson relevant the case. v. Superior are material and sought Flora Crane Court Service, Inc. v. Court 234 Cal.App.2d Cal.Rptr. 79].) section 1987.2 authorizes the subpoena
Code of Civil Procedure duces tecum to be if made in bad faith or if one or more of its quashed are to Penal Code sec- requirements oppressive. hearing pursuant must tion 1334.2 the same standard and make the applies with faith same determination respect materiality, good oppres- siveness. to both code Consequently, hearings pursuant sections examine the and make the same issues same determination as to wheth- er with the or order is compliance required. conclude,
I from the plain unvarnished language section 1987.2 of Procedure, the Codе of Civil it authorizes the superior court to award fees when a subpoena issued pursuant to Penal Code section 1334.2 is found to be in bad faith or oppressive. This court re versed the superior court’s earlier issuance of the “order” there holding was manifest undue hardship to M.C.A. and the state and demanding its successors in interest had acted with “unclean hands.” Specifically this court stated: “The amended certificate here makes no reference whatsoever to the matter of undue hardship to be caused by compelling MCA to appear, in Florida but proceedings discloses facts which would support rational conclusion that MCA would be a prime subject for extinction by the parties being investigated for murder (In and loan sharking Florida.” re M.C.A. (Apr. 1980) 4 Civ. 22150 [unpub. opn.].)
This court’s finding oppressiveness in the subpoena’s enforcement as the law of the case is conclusive and in the instant binding proceed- ings. Since the subpoena’s requirements were oppressive, as the trial concluded, court also eventually Code of Civil Procedure section 1987.2 authorizes the court to award M.C.A. reasonable expenses and attorney fees, incurred in opposing the subpoena by State of Florida and its surrogate, the State of California.
II The majority opinion violates sound principles of statutory interpreta- tion compel the conclusion a subpoena issued pursuant to Penal
234 of referred to specie “subpoena”
Code section 1334.2 is a of Civil Procedure section 1987.2. result in a in such a manner as to
A statute is not to be construed
(1896)
Furthermore,
used in a statute must be construed in
words
(John
in mind the nature and Obvious
of
statute.
keeping
purpose
(1951)
41
stone v. Richardson
103
P.2d
v.
Cal.App.2d
People
[229
294,
(1969)
Statutes must be effect the intent construed to Legislature to ascertain intent the courts should construe the legislative statutes (1976) the context of the whole of law. v. Ruster 16 system (People 690, 153, 353, Cal.3d 696 548 80 Cal.Rptr. P.2d A.L.R.3d [129 (1956) 310, 144 1269].) Moody H.S. Mann v. 320 Corp. Cal.App.2d P.2d it was held: “The star of construction 28], guiding statutory [301 is the To the end that it be Legislature. correctly intention of ascer- tained the be read in the of its light statute historical background and evident objective. [Citation.]” cоde an- construction that one statutory
It a most basic rule of purposes statutory construed “for together; must be read and other as into each other blending to be regarded construction the codes are (Pesce Bev. v. Alcoholic Dept. but a statute.” single and constituting The sections of the 310, 15].) P.2d (1958) 51 Cal.2d 312 Control [333 materia, together must be construed they therefore pari code are 831, (Estate (1975) Cal.3d McDill 14 section. effect to each given 1889 case of 874], citing 537 P.2d Cal.Rptr. 836-837 [122 own court 551].) 221 P. Our 81 Cal. Gleason Spray be with reference construed has written statute should “Every be harmonized may so that all pаrt law of which it is whole system Bd. (Morrison v. Ins. Unemployment Appeals and have effect.” 916].) bench, Act indi- In the at of the Uniform legislative history case procedures intended that expressly cates that Legislature *10 The original text contemplated “subpoena” process. therein involve in Act, authorized Congress the Uniform drafted national by was material and neces- the witness judge, upon determining compelling and that no undue would result from sary hardship attendance, tes- summons issue a the witness attend and directing Ann., However, (11 8.) p. in the state. U. Laws tify demanding § specifically California these revised Legislature enacting provisions the statutes the word summons to The subpoena. changing Uniform Act embodied in section 1334 et of the Penal Code refers to the seq. process by which a witness is directed to before a court as in no than 15 subpoena less different instances. From these changes text it is clear that the in- original Legislature expressly tended that Act Uniform authorize the issuance of subpoena rather than other form any of court order. This fact alone supports proposition attorney fees are authorized in the instant case.
It is presumed the Legislature fully aware of preexisting legislation law at case the time enacting a statute. Thus when enacting 1987.2, Code of Civil Procedure section the Legislature was aware fully of the use of the subpoena term in Penal Code section 1334.2 and in- well; tended that the provisions otherwise, to them as apply Legislature would have taken measures to the section except 1334.2 subpoena.
Moreover, the legislative history of Code of Civil Procedure section 1987.2 supports the conclusion that the California Legislature, in enact- section, this ing intended to encompass this referred to in subpoena section 1334.2 the Penal Code within its provisions. The сomment the Legislative Counsel’s Digest of Senate Bill No. 4 Statutes Sess.) 1976 (Reg. 317,. Summary Digest, page states: “This bill would make specific provision for a court order quash, or limit a modify, subpoena a witness for the production of. items before a court.
“This bill would a court permit to award the amount of reasonable incurred, expenses fees, including attorney’s making or such opposing a motion where court finds the motion was or made in bad opposed faith or without substantial or that justification one more of the re- quirements of the subpoena oppressive.”
These comments and terms of section 1987.2 of Code of very Civil Procedure also two suggest underlying promoted sec- policies 1987.2, tion both of which to a also issued apply Penal Code 1334.2 are section and which thwarted majority opinion. first
The focuses on policy abuse of which oc- preventing process curs when a in bad subpoenaed witness faith or issued an oppressive subpoena. statute intended to obviously punish subpoenaing this them to witness’ party abusing system by pay the compelling Likewise, expenses fees. the statute is fu- intended to deter *11 case, ture abuses such a sanction. the instant by imposing awarding Florida, fees and dеter the expenses would State of acting by California, and of the of from through State agency reattempting oppressive such an measure M.C.A.2 against Civil The second section 1987.2 of Code of policy promoted by to be afforded a witness protection subpoenaed Procedure highlights has in or in bad faith. This constitutional dimensions oppressively policy implicated the due clause of the Constitution is Whenever process of him to deprived purpose compelling witness is of liberty for Thus, of must a court. an the State California appear agency before faith, in or not in bad рart process wrongfully, oppressively, take any a grand which a witness to before California or compels appear in a sister state. jury proceeding its indicates that no distinction between the statute on face
Finally, be- The statute does not distinguish was intended. types subpoenas statutory to and distinct pursuant separate tween issued subpoenas or limitations are contained provisions. No narrowing interpretations would, statute, a manner as not- construe the statute such to ed, I the term its would construe Accordingly, defeat purpose. is used subpoenas throughout to all as term mеan “subpoena” Penal pursuant A issued to subpoena California statutory provisions. within the proscription included necessarily Code section 1334.2 of Civil contained oppressive subpoenas bad faith against liability oppressive for an California from majority relieve State seeks to 2The agents’ regarding law agency principles. The quite on clear some abusive An majority view. support acts does not oppressive responsibility for bad faith is lia “regardless principal whether the wrongful acts agent responsible its own for 721, (1944) 25 Cal.2d Marinship Corp. judicial (James v. action.” ble or amеnable Code, 2343, 3.) 329, subd. 900]; Civ. P.2d 160 A.L.R. § 743 [155
237 Procedure section 1987.2. The trial court here failed exercise the dis- cretion bestowed it when it construed section to exclude upon 1987.2 1334.2, issued to Penal Code section thus subpoenas evading promoted the twin the statute. defeating policies Ill as a sought subpoenaed M.C.A. to be witness before If as grand Code of Civil Procedure jury. majority argues, section 1987.2 applies only proceedings civil as v. (citing authority Fabricant (1980) 905, Court 104 Cal.App.3d 914-915 Cal.Rptr. [163 894]), then proceeding met this test: jury an v. inquisitional (1926) of ancient Foster body origin. 198 (People (1971) Cal. 120 Monroe P. v. Garrett Cal.App.3d [243 Cal.Rptr. 531]; People Pipes 547, 553 It is a Cal.Rptr. 814].) “vigilant watchdog.” v. Su (People (1973 Court perior Jury) Grand 13 Cal.3d 436 [119 193, 531 And 761].) P.2d when its engaged indicting function, crime it is in proper no sense criminal proceeding.
In a case the distinctions between Fifth involving Amendment defendant, of a privileges witness and of in In the court re Lemon (1936) 82, Cal.App.2d 15 85 P.2d 213], after extensive review of [59 authorities, “the commented that sounder is view” that: grand “[A] investigation is in sense jury no a criminal proper and that proceeding no has the person status of in such party defendant investigation held which is merely for the whether purpose determining crimi any nal shall be It proceeding commenced.” is well established that a grand “‘a jury judicial and “‘an of the body’” courts of this instrumentality (1973 state.’” (People v. Court Superior Jury), Grand 13 supra, Cal.3d 430, 438.) such, As it is not either civil or criminal in exclusively na ture, but, as case, Justice Mosk in his dissent in recognized that (Id., 442.) combines both at p. functions. While its origins be lost may definition, in and its at antiquity functions times one defy yet thing clear: “A grand jury not a criminal trial.” proceeding v. Flo (People (1969) 61, res 276 66 Cal.App.2d Cal.Rptr. People v. Dupree [81 (1957) 60, 156 Cal.App.2d 65 P.2d re 39]; In McDonough [319 21 Cal.App.2d P.2d 288 1020].)
Since M.C.A.’s was in of the presence sought pursuit in- jury’s Court, function, or civil it follows that vestigative Fabricant 914-915, (See Cal.App.3d point. 104 is nоt In re supra, simply 113 Cal.App.3d Lemen Marriage 642].) Fabricant involved a defendant in a criminal Factually pending who matter was assessed sanctions the trial as by punishment decision, his abuse of its subpoena power. reaching Court Appeal observed Civil Procedure sections 1987.1 concerning 1987.2, not, however, “It does ap are intended to they (Fabricant, 914; ply p. criminal actions” at supra, added.) defendant; italics the instant case was not M.C.A. a criminal he not abusing was but was by instead victimized power it. Neither can the for which was presence sought proceeding prop matter, be as to which erly characterized a criminal civil discovery principles would be since of the inapplicable, purpose investigation the. was to determine criminal being by conducted whether be filed. gives should Fabricant no aid comfort to the charges majority.3 I am fact M.C.A.’s defense
Finally, persuaded by against respondents of the Uniform Act power by necessarily exercise contemplated Presumably, that act. procedures couched within sec- of Code of Civil Procedure applicability he could have insured tion a motion under Code of Civil Procedure section making 1987.2 by this issued cоurt in quash subpoena duly superior 1987.1 to at the sec- having prevailed state’s response requesting matter act, Yet this would have been an idle and useless hearing. tion 1334.2 (Cf., Code, 3532.) Civ. require. which the law declines to of the type § to be sought compelled material witness M.C.A. was subpoenaed *13 du- its performing investigative jury Florida before function; and successful M.C.A.’s vigorous a civil ties—essentially Act was tanta- legally under the Uniform opposition proceedings Civil Procedure under Code of to quash brought mount to a motion 1987.1. section stan- clearly case shows M.C.A.’s opinion
Our previous 1987.2, showing requiring section of Civil Procеdure dards of Code for an award of faith, or unreasonableness bad oppression, would render such an award deny this case. To fees, met in have been For essentially meaningless. previous opinion in our conclusions those fees provisions the attorney I conclude reasons would each of these “is determi Code of Civil Procedure placement 3Fabricant concedes (Ibid.) P. Cal. 293-294 native,” citing 478]. Dunne Lewis Code of Civil Procedure section 1987.2 are applicable. The cause should be remanded for proceedings conforming the views expressed in this dissent.
On 24, 1982, February opinion modified to read as printed above. Appellant’s petition for a hearing Supreme Court was denied March 1982.