MCA v. State of California

128 Cal. App. 3d 225, 181 Cal. Rptr. 404, 1982 Cal. App. LEXIS 1224

• Court: California Court of Appeal
• Decided: January 26, 1982
• Docket: Civ. 24002
• Status: Published

Opinions

Opinion

WIENER, J..—

The issue in this appeal by M.C.A, whose identity is protected under the federal witness program, is whether the trial court ruled correctly in denying his motion for reimbursement of expenses and attorney fees after he successfully resisted efforts under Penal Code section 1334.2¹ to compel his attendance before a Florida grand jury. Finding no statutory or common law basis to accommodate his request, we affirm the order.

In M.C.A.’s first appeal, we reversed the section 1334.2 order compelling his appearance before the Grand Jury of Broward County, Florida, and “remanded for further proceedings consistent with the views here expressed. Appellant to recover costs on appeal.” (In re M.C.A. (Apr. 23, 1980) 4 Civ. 22150 [unpub. opn.].) Upon remand, the court denied M.C.A.’s motion for reimbursement from the State of California for all expenses and attorney fees incurred at both the trial and appellate levels.² This appeal followed.

We begin by noting the familiar precept that California courts have ?consistently awarded attorney fees only on the basis of statute or an established common law doctrine. (See generally Bauguess v. Paine (1978) 22 Cal.3d 626 [150 Cal.Rptr. 461, 586 P.2d 942]; Code Civ. Proc., § 1021.) The Uniform Act which governed the underlying proceedings (see fn. 1, ante) contains no provision for the award of attorney fees.³

Recognizing that fact, M.C.A. based his trial court motion for expenses solely on Code of Civil Procedure section 1987.2.⁴ That civil discovery statute, of doubtful application in criminal proceedings (Fabricant v. Superior Court (1980) 104 Cal.App.3d 905, 914 [163 Cal.Rptr. 894]), permits the trial court to award expenses, including attorney fees, against one who in bad faith or without substantial justification makes or opposes a motion to quash a subpoena.

We question the statute’s application here where the Legislatures of California and 48 other states have formalized the procedure for obtaining out-of-state witnesses pursuant to a Uniform Act. Unlike the administrative process of Code of Civil Procedure sections 1985 and 1986, permitting the clerk to issue a blank subpoena without notice to the witness, the Act provides a carefully structured mechanism to assure notice and hearing to the witness before the court issues the order compelling attendance.⁵ Section 1334.2 requires the judge to set a hearing and make an order directing the witness to appear. Witnesses may then be called and evidence presented to establish whether the appearance of the cited witness is necessary and whether compelling him to appear in another state will cause him undue hardship. After the order is entered, either side has the right to appeal.

The manifest differences between the normal civil subpoena procedure and the specialized provisions of the Uniform Act compel a conclusion that the Legislature did not intend Code of Civil Procedure section 1987.2 to apply to cases arising under the Uniform Act. To begin with, M.C.A. here seeks an award of expenses and attorney fees from the State of California. Section 1987.2 only authorizes a court to make such an award against a party litigant who seeks a subpoena without adequate justification. California did not seek to subpoena M.C.A.; it merely processed Florida’s request and conducted a hearing on the issue.

Second, it is also significant that the Act precludes the California court from questioning the reasonableness of the order of the out-of-state court issuing the certificate for attendance of a witness. The Act mandates the court receiving the certificate to direct the witness to appear at a hearing at a time and place fixed by the judge. In our view, it is unlikely the Legislature intended assessment of attorney fees and expenses against the fisc of this state in situations where the California court did nothing more than perform its statutory duty.⁶

Finally, even were we to accept M.C.A.’s theory that California may be charged with bad faith based on the trial court’s issuance of the subpoena, an order which this court later reversed on appeal, we would still find section 1987.2 inapplicable.⁷ The purpose of the attorney fee provision in that section is to compensate the potential witness for attorney fees incurred in moving to quash the issued subpoena, fees which would not have been incurred but for the issuing party’s bad faith. Proceedings under the Act, however, require a hearing before the issuance of the subpoena. Regardless of the outcome of that proceeding, a reluctant witness necessarily incurs expenses in resisting the issuance of the subpoena. This inevitable cost thus reflects the nature of the proceeding and not, as M.C.A. contends, a court’s bad faith. It would indeed be contrary to the underlying purpose of both statutory schemes to assess California when it has only attempted, both through legislation and judicial action, to assure its residents notice and an opportunity to be heard before ordering a resident to appear as a witness out of state.

We therefore conclude the Legislature did not intend Code of Civil Procedure section 1987.2 to apply to proceedings under the Uniform Act.⁸

As to M.C.A.’s request for costs on his first appeal, we note that his failure to have complied earlier with the requirements of Code of Civil Procedure section 1034 is not fatal because the trial court retains discretion to allow relief from failure to file timely. (See Wilson v. Hinkle (1977) 67 Cal.App.3d 506, 512 [136 Cal.Rptr. 731], cert. den. (1977) 434 U.S. 858 [54 L.Ed.2d 130, 98 S.Ct. 181].)

Disposition

Judgment is modified to permit M.C.A. to request relief from the 10-day filing requirement of Code of Civil Procedure section 1034 in order to recover his costs on the first appeal. As modified, the judgment is affirmed. Each party to bear its own costs on this appeal.

Work, J., concurred.

1 Section 1334.2 is part of California’s version of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Cases (hereinafter Act). (See generally Pen. Code, §§ 1334-1334.6.) All statutory references are to the Penal Code unless otherwise specified.

2 M.C.A. requested reimbursement for $9,712.50 attorney fees; $1,334.85 witness fees to secure the attendance of M.C.A.’s Florida attorney at the local hearings; and $91 for photographic reproduction of pleadings and motions.

3 For those with a penchant for trivia, our count reveals the Legislature has made provision for attorney fees in 160 statutes appearing in 15 codes. (See Olson, Brosnahan & Margolin, Attorney Fees from the Perspective of the Trial Judge and Trial Attorney (1981) Joint CJA/State Bar Program Seminar Material.)

4 Code of Civil Procedure section 1987.2 provides: “In making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorneys’ fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

5 Section 1334.2 provides in pertinent part: “If a judge of a court of record in any state, which by its laws has made provision for commanding persons within that state to attend and testify in this state, issues a certificate under the seal of the court that there is a criminal prosecution pending in the court, or that there is a grand jury investigation, that a person within this state is a material witness in such prosecution or grand jury investigation, and that his presence will be required for a specified number of days, then, upon presentation of the certificate to a judge of a court of record in the county in which the person is, a time and place for a hearing shall be fixed by the judge and he shall make an order directing the witness to appear at the hearing.

“If at the hearing, the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state, and that the laws of the state, in which the prosecution is pending or in which there is a grand jury investigation, will give to the witness protection from arrest and service of civil and criminal process and will furnish in advance to the witness the sum of ten cents ($0.10) for each mile necessarily traveled if the Witness elects surface travel or the minimum round trip scheduled airlines fare plus twenty cents ($0.20) a mile for necessary surface travel at either end of the flight if the witness elects air travel, and a per diem of twenty dollars ($20) for each day that he is required to travel and attend as a witness and that the judge of the court in which the witness is ordered to appear will order the payment of witness fees authorized by law for each day the witness is required to attend the court plus reimbursement for any additional expenses of the witness which the judge of the court in which the witness is ordered to appear shall find reasonable and necessary, he shall issue a subpoena, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where the grand jury investigation is, at a time and place specified in the subpoena. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.”

6 It also is not surprising that the Commissioners of the Uniform Laws, sensitive to political realities, did not propose that the requesting state be liable for attorney fees. Such a provision in effect would have amounted to a carte blanche provision permitting the court receiving a request for attendance of a witness to determine whether the requesting state should bear that financial burden. To have included such a provision would indeed have had a chilling effect upon the good faith cooperation among the states essential to the effective operation of the Act.

7 We note our inability to locate any precedent requiring the state to pay costs because of a trial court’s erroneous ruling, particularly where a judge acting within the scope of his jurisdiction is immune from liability, even where he acts in error maliciously. (See Stump v. Sparkman (1978) 435 U.S. 349, 357-358 [55 L.Ed.2d 331, 339-340, 98 S.Ct. 1099].)

8 On appeal, M.C.A. for the first time claims .entitlement to attorney fees and costs-pursuant to the “vexatious litigant doctrine.” We reject his request for there is no legal or factual basis for its application. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 27 [112 Cal.Rptr. 786, 520 P.2d 10]; 4 Witkin, Cal. Procedure (1981 supp.) Judgment, § 116, p. 211.)