Appellant, plaintiff's attorney in a personal injury suit, was ordered by the trial court to pay respondents $700 in attorney's fees after a mistrial was declared in that action. This court must decide whether the trial court exceeded its authority in issuing that order.
Appellant, Maxim N. Bach, represented the plaintiff in the personal injury suit of Bauguess v. Paine. The trial proceeded uneventfully until the second day, when appellant proposed reading a deposition to the jury. Appellant requested that a diagram, attached to the deposition, be admitted into evidence. Extra copies of the diagram had been made to pass among the jurors for their use in following the testimony. This procedure was approved by the court and the clerk was told to label the copies "6A through M." When appellant requested that "6 go into evidence," the court replied: "6 is in evidence as are 6A through M."
This same procedure was followed regarding a sketch prepared by the next witness, a highway patrolman. The prepared copies of the sketch were passed among the jury and the court admitted "7A through M in evidence, there being no objection." Again, the court instructed the jury, "you're free to mark on these exhibits if you want." (Italics added.)
The court then collected the exhibits of the highway patrolman's sketch, on which the jurors had taken notes. Note paper was supplied to the jury. Although the jurors were allowed by the court to take their notes home, they were admonished to keep the notes confidential.
After the trial had recessed for the evening and while the judge was engaged with other matters, appellant asked permission of the clerk to examine exhibit 7. He took the exhibit, looked at it briefly, and returned it.
Before trial commenced the next day, the judge remarked that his clerk had informed him that appellant had looked at certain exhibits on which the jurors had taken notes. Appellant responded that he was entitled to do so since the exhibits had been admitted into evidence. The court disagreed, reprimanded appellant, and raised the possibility of a mistrial. Appellant steadfastly maintained he had done nothing improper, that there had been no prejudice to respondents' case and that the error, if any, could be cured if opposing counsel were to view the notes as well. Defense counsel refused and then moved for a mistrial.
An acrimonious discussion ensued between the court and appellant. The court was particularly displeased with appellant's position that once an item had been admitted into evidence, counsel had not only a right
After the jury was discharged, defense counsel requested attorney's fees for the two days of the aborted trial. The court again expressed displeasure at appellant's position, indicated contempt or other disciplinary proceedings might be in order, and continued the matter for two days.
At the hearing on respondents' motion for attorney's fees, appellant requested that the contempt charges be heard first, since he feared anything said in opposition to the motion for attorney's fees might be used against him in the contempt proceedings. Appellant's counsel further requested that the hearing be postponed until the reporter's transcript of the trial was prepared. The court denied both requests. On the advice of counsel, appellant did not argue the motion for attorney's fees but renewed his standing request that the contempt proceedings be heard first.
The court declared the motion for attorney's fees submitted without opposition because appellant remained mute. Thereafter, the court ordered appellant to pay respondent $700 for attorney's fees as a sanction. The court then reiterated its displeasure, concluding: "[What] would make me happier than anything in the world is to have you just maybe eat a little humble pie and admit that you made a mistake in judgment and it's not going to happen again. That's all I'm after."
This court has moved cautiously in expanding the nonstatutory bases on which awards of attorney's fees may be predicated. In Serrano, fees were awarded only after careful analysis and a finding that compelling reasons of public policy warranted such an award. Specific guidelines for the exercise of the trial court's power to make such awards were set down. (Id., at pp. 43-47.)
Respondents rely chiefly on Fairfield v. Superior Court, supra, 246 Cal.App.2d 113, 120. However, that slender reed scarcely provides support for the sweeping power respondents would have this court approve. Fairfield held that a trial court may award attorney's fees or impose appropriate sanctions if a party refuses to obey an order compelling further answers to interrogatories. That award was upheld as within the exercise of the trial court's inherent power. However, it was only because of the somewhat novel circumstances of that case that Code of Civil Procedure section 2034 did not authorize the award, and it was clearly consistent with the Legislature's intent in enacting the Civil Discovery Act. (Code Civ. Proc., § 2016 et seq.) The present case does not involve these factors.
It would be both unnecessary and unwise to permit trial courts to use fee awards as sanctions apart from those situations authorized by statute. If an attorney's conduct is disruptive of court processes or disrespectful of
The use of courts' inherent power to punish misconduct by awarding attorney's fees may imperil the independence of the bar and thereby undermine the adversary system. In cautioning trial courts to use their contempt powers with care, this court has repeatedly stressed the importance of permitting counsel to be a vigorous advocate:
The present case illustrates the dangers which the exercise of such power, "without appropriate safeguards and guidelines," would pose. Although ostensibly awarded to compensate respondents, it appears from the record that the sanctions were prompted more by appellant's vigorous assertion that he had a right to examine the copies of the diagram once they had been admitted into evidence, and his refusal to apologize.
In addition, the procedure which the court followed may not have afforded appellant due process of law. Although the trial judge had not personally observed appellant's alleged misconduct, he heard the sanctions motion. The hearing was based not on the actual record but on the participants' somewhat imperfect memories of the events. Further, appellant, following the advice of his counsel, did not contest the award of attorney's fees because the court would not hear the contempt allegation first. Finally, the court's remarks on the record indicate that it viewed the imposition of attorney's fees as an alternative to the penalty that could be imposed for contempt of court. However, the penalty assessed was in excess of that permitted for contempt. (Code Civ. Proc., § 1218.) Given these circumstances, this court cannot approve the order of the trial court.
The Legislature has provided by statute that awards of attorney's fees may be granted by a court in specific situations. However, the situation presented by this case is not one of them. This case does not fall within the limited number of judicially recognized nonstatutory exceptions to Code of Civil Procedure section 1021. To carve out another judicial exception permitting such an award would pose serious due process problems. For all of these reasons, this court holds that the award of attorney's fees to respondents following a mistrial exceeded the proper limits of the trial court's inherent power.
Tobriner, J., Mosk, J., Richardson, J., Manuel, J., and Newman, J., concurred.
The majority purport to hold — without confronting the issue — that an order imposing sanctions on an attorney for misconduct resulting in mistrial of an action in which he appears only in a representative capacity, is an appealable order in that action.
In support of such proposition the majority state the rule that a final order on a collateral matter directing payment of money is appealable, citing Wisniewski v. Clary (1975) 46 Cal.App.3d 499 [120 Cal.Rptr. 176]. (Ante, p. 634, fn. 3.) However, Wisniewski stands only for the proposition that such an order is appealable by an aggrieved party to the action. The issue here is not whether the order is appealable but whether the attorney has standing to take the appeal in his individual capacity. An appeal may be taken only by a "party" to an action. (Code Civ. Proc., § 902.) Bach is not a party — he is not a designated party and no proper order has been made bringing him into the action. Bach simply cannot assert an appeal in this case. (See Rogers v. Transamerica Corp. (1935) 6 Cal.App.2d 340 [44 P.2d 635]; Butchart v. Moorhead (1929) 101 Cal.App. 659 [282 P. 23] [a party dismissed from an action cannot appeal]; Shearer v. United California Theatres (1955) 133 Cal.App.2d 720 [284 P.2d 934] [a party to an action not named in a cross-action cannot appeal from an order affecting only the cross-action].)
Exhibit 7 consists of a highway patrolman's sketch offered into evidence by Bach in behalf of the plaintiff. Bach advised the court he had made copies of the exhibit for the individual jurors, and certainly we can assume his familiarity with the exhibit. Thereafter the court urged the jurors to make confidential notes on their copies of the sketch during testimony of the patrolman. The court observed that the jurors had done so not only during the patrolman's testimony but also during reading of the deposition of an unavailable witness. Thereupon the court admonished in clear and unambiguous language as to the confidentiality of the notes: "... these are your personal notes and they are not to be shared with anyone until the case is finally submitted to you ... but until such time they're your own personal notes, not to be shown to any of your fellow jurors, your spouse or your neighbors, anybody.... [K]eep in mind you are to keep your own counsel and you are not to share them with anyone." This admonition was made in open court in Bach's presence.
It is clear Bach did not casually examine exhibit 7 for the purpose of ascertaining information contained in a duly received exhibit. After proceedings had been recessed he obtained exhibits 7 and 7A through 7M from the clerk, sat in the courtroom examining all exhibits, observing the confidential notes of individual jurors for the purpose of obtaining information which might give him a competitive advantage. In fact he later argued to the court he had a right to examine the jurors' notes appearing on exhibits 7A through 7M notwithstanding direction to the contrary.
I am unable to discern the precise ground upon which the majority conclude the trial court exceeded its jurisdiction in these circumstances. They suggest that Bach is innocent of any misconduct (ante, p. 636, fn. 6) and was in no way restrained from examining the jurors' notes because the admonitions of confidentiality had not been directed specifically to him (id.). If that is the ground for the majority opinion, then the majority fail to recognize Bach's stated and obvious motivations.
Most of the majority's following discussion concerning the award of attorney fees is irrelevant to the issue presented — clearly this is not a case involving an award of attorney fees in the traditional sense. What is at issue is the inherent authority of a trial court to supervise and control proceedings by exercising reasonable restraints on counsel practicing before it. The majority conclude that because a court can hold an attorney in contempt there is no need for further controls — thus voiding the lesser power to impose sanctions.
"[E]very court of record has powers requisite to its proper functioning as an independent constitutional department of government...." (Bloniarz v. Roloson (1969) 70 Cal.2d 143, 147-148 [74 Cal.Rptr. 285, 449 P.2d 221]; see also Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 230 [83 Cal.Rptr. 125].) The exercise of this inherent power is limited only by sound discretion. (See Bailey v. Fosca Oil Co. (1963) 216 Cal.App.2d 813, 818 [4 Cal.Rptr. 474].) Contempt is not the only tool at the court's disposal. A court may adopt "any suitable process or mode of proceeding ... which may appear most conformable to the spirit of" the Code of Civil Procedure. (Code Civ. Proc., § 187; Kent v. Superior Court (1951) 106 Cal.App.2d 593, 595 [235 P.2d 420].) While there is no legislative authorization for the sanctions imposed in the instant case, the Legislature has enacted provisions requiring a defaulting attorney to pay attorney fees of an opposing party when such attorney disrupts the judicial process by failing or refusing to comply with discovery orders. (Code Civ. Proc., § 2016 et seq.) In view of such legislation it cannot be said the imposition of almost identical sanctions under the court's inherent powers contravenes any legislative policy or that a court is restricted to its contempt powers in supervising proceedings before it.
In an analogous situation, wherein the court noted there was no legislative authorization for imposition of a sanction — including an order requiring an attorney for one party to pay attorney fees for an opposing
In another case in which sanctions requiring payment of money to an opposing party were upheld, the court stated: "Every court has the inherent power to regulate the proceedings of matters before it and to effect an orderly disposition of the issues presented. [Citations.] Sanctions are expressly provided for in some situations [citations] but sanctions have also been approved in situations which are not expressly covered by statute or court rules.... [¶] ... Although no direct order of the trial court was disobeyed, the facts support the view that the time of both the court and of opposing counsel was wasted. [¶] The exercise of the court's inherent power to provide for the orderly conduct of the court's business is a matter vested in the sound legal discretion of the trial court. Such a decision is subject to reversal only where there has been an abuse of that discretion." (Santandrea v. Siltec Corp. (1976) 56 Cal.App.3d 525, 529-530 [128 Cal.Rptr. 629].)
Certainly it cannot be argued the court in the instant case abused its discretion by imposing a sanction in the amount of modest attorney fees for the two days of trial. The court could well consider that a penalty imposed for contempt would not compensate the damaged party for the expense of two wasted days. For that reason there is no abuse when the court elects to exercise its inherent power to impose sanctions rather than fix a penalty for Bach's contempt. The only reported cases support the trial court's action — the majority referring to no case in point supporting their judgment to ignore or disapprove existing authorities.
The order imposing sanctions not being appealable, the appeal should be dismissed.
"MR. BACH: Your Honor for exhibition's sake I have taken the liberty with no objection to run off thirteen copies of that sketch rather than have the officer redo it or run into problems with the police report.
"Would there be any objection to having the jury —
"MR. DAVIS: Let me take a look at it. No, I have no objection Your Honor.
"THE COURT: And do you have the police report that you are offering into evidence, or what —
"MR. BACH: No, I don't think that is proper. That's just a sketch. And I was going to —
"THE COURT: Want it marked for identification as the original or how do you want to handle it?
"MR. BACH: Yes. Could I see the copy you have there Officer?
"THE COURT: Do you need that for your files Officer?
"THE WITNESS: A [sic] yes, sir, well I have to return it to the office.
"THE COURT: All right. Then why don't we just go ahead and mark these as Plaintiff's next in order. What was the number you have Madam Clerk?
"THE CLERK: 7 Your Honor.
"THE COURT: 7A through M in evidence, there being no objection.
"MR. BACH: Okay.
"(PLAINTIFF'S EXHIBIT NUMBER 7A - M XEROX COPY OF ORIGINAL ACCIDENT REPORT ADMITTED INTO EVIDENCE)
"THE COURT: And 7A through M will now be distributed if you like —
"MR. BACH: Appreciate it Your Honor.
"THE COURT: — to the jurors again. The juror in Seat I should have A, and then A through M, the alternate having M.
"And you're free to mark on these exhibits if you want. If you want to take any notes there with the exhibit when you hear the testimony.
"And when the bailiff picks them up then they'll be given to you, returned to you for your use during your deliberations."
"MR. BACH: I'm not taking the position the court has lost control of the proceedings. I have not said that.
"THE COURT: Are these exhibits notes of the jurors?
"MR. BACH: What I have said is that exhibits that are evidence, yes, those are in evidence and I don't think the court can preclude us from looking at them.
"THE COURT: That's your position? ... And as long as that is your position Mr. Bach and you're going to continue the course of conduct you have there is no point in proceeding with the trial. We can't try a case that way. And I'm forced to grant the mistrial. I'm trying to salvage this case in the interest of your client.
"MR. BACH: Well I'm trying to assist the court there. I'm willing from this time forward to make a new stipulation in regard to the subject exhibits, of 6 and 7.
"THE COURT: Your position is that the court can't tell you Mr. Bach you're not entitled to look at jurors' notes? You're violating the rules of this court. You're in contempt of this court when you do that.
"MR. BACH: I'm not saying that."
"Every court shall have power:
"3. To provide for the orderly conduct of proceedings before it, or its officers;
"4. To compel obedience to its judgment, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein;
"5. To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto."