Opinion
WRIGHT, C. J.
We issued an alternative writ directing respondent court to show cause why it should not set aside its order denying the People’s motion for a grant of immunity from criminal prosecution to a deponent in a civil action involving charges of consumer fraud and unfair competition, and compel him to testify on deposition. It is urged on behalf of respondent and real party in interest that, in the absence of specific legislative authorization, a trial court lacks jurisdiction to grant such immunity. We conclude that thé court is vested with such jurisdiction and we grant the peremptory writ.
The People commenced the civil proceedings against multiple defendants including Herbert Kaufman, the real party in interest herein, alleging inter alia that the defendants had engaged in a fraudulent scheme designed to mislead members of the public into believing that they could obtain employment in the advertising, modeling or entertainment fields by availing themselves of services offered by defendants.
During the course of pretrial proceedings the People arranged to take the deposition of Kaufman. He answered certain background questions but, on the advice of his counsel, refused to respond to any inquiry which tended to connect him with activities germane to the alleged fraud. In each instance the basis for his refusal was that a response to the question could lead to the production of evidence which may tend to incriminate him of criminal conduct and thus
infringe the constitutional proscriptions against such incrimination. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 13.)
The People then moved for an order which would provide Kaufman “with all possible protection against criminal prosecutions as a result of [his] testimony taken at [the deposition] or at the trial of the pending action” (hereinafter referred to as a protective order). The order as sought would have further limited the use of the deposition to the pending civil action, and would have provided that it would amount “to an effective grant of immunity” from criminal liability. As previously stated, respondent court denied the motion on the ground that it lacked jurisdiction to make such a protective order;
The People’s principal contention is that the trial court has jurisdiction to issue the proposed protective order pursuant to the provisions of Code of Civil Procedure section 2019. That section relates to depositions on oral examination and provides in subdivision (b), subsection (1), for numerous court orders designed to facilitate the disclosure of information, to minimize intrusion into private areas, and to maintain the security of such disclosures. Pertinent to the instant inquiry the subsection particularly provides: “the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.”
We had occasion to consider the scope of Code of Civil Procedure section 2019, subdivision (b), subsection (1), in the case of
In re Lifschutz
(1970) 2 Cal.3d 415, 437 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]. There a psychiatrist was imprisoned when adjudged in contempt of a court order requiring that he disclose on deposition in a civil action communications concerning the mental health of the plaintiff, a former patient. We held that the order to disclose did not infringe constitutional or statutory rights of the psychotherapist; that the psychotherapist-patient privilege (Evid. Code, § 1014) is limited by the patient-litigant exception (Evid. Code, § 1016) when the patient puts in issue particular matters relating to the condition of his mental health. We further held that when “inquiry
into the confidential relationship takes place before trial during discovery . . . the patient or psychotherapist may apply to the trial court for a protective order to limit the scope of the inquiry or to regulate the procedure of the inquiry so as to best preserve the rights of the patient. Section 2019, subdivision (b), subsection (1), of the Code of Civil Procedure grants the court broad discretion to issue ‘any . . . order which justice requires to protect the party or witness from annoyance, embarrassment or oppression.’ ”
(Id.
at p. 437.)
Interpreted broadly,
Lifschutz
recognizes that discretion rests in the trial court to control the scope and use of a deposition where a claim of privilege has been tendered and the limits of an exception to the privilege are at issue. The People urge that having held that section 2019 authorizes a protective order in civil proceedings to limit the use of a deposition where such use might otherwise infringe a confidential privilege, we should also hold that the section authorizes the issuance in civil proceedings of a protective order fashioned to render the right against self-incriminatio'n inviolate. It is contended that such could be accomplished by limiting the use of a deposition and the fruits thereof in the event criminal proceedings thereafter should be instituted against the deponent.
It is argued on behalf of the respondent and the real party in interest
that the Constitution and the Legislature have authorized judicial grants of immunity only in limited, specific instances (see generally Pen. Code, §§ 1324 and 1324.1 relating to transactional immunity) which do not include grants of use immunity in prosecutions on charges of deceptive advertising, and that in the absence of specific constitutional or legislative authorization a, court cannot act. (See Witkin, Cal. Evidence (2d ed. 1966) §§ 928-931.) Some of our earlier decisions are described as having held that a grant of immunity may not be accorded except when directed by the Legislature in specific applications. (See
In re Critchlow
(1938) 11 Cal.2d 751, 760 [81 P.2d 966]; see also
In re Tahbel
(1920) 46 Cal.App. 755, 759 [189 P. 804],)
Such decisions, however, might well be char
acterized as interpretations of statutory provisions which dealt
only
with specific grants of immunity. In no instance was it necessary to consider whether a statute, purporting to vest broad general discretion in the trial court to accord immunity in a variety of circumstances, did effectively vest that court with discretion to make valid grants of immunity especially in instances when justice and social policies implicit in legislative enactments compel disclosure.
In more recent years we have given a liberal construction to legislation which purports to relieve an alleged wrongdoer of the threat of criminal prosecution in exchange for incriminating information which the Legislature has deemed to serve some socially desirable policy. Thus, in
Byers
v.
Justice Court
(1969) 71 Cal.2d 1039 [80 Cal.Rptr. 553, 458 P.2d 465] (vacated on other grounds in
California
v.
Byers
(1971) 402 U.S. 424 [29 L.Ed.2d 9, 91 S.Ct.
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Opinion
WRIGHT, C. J.
We issued an alternative writ directing respondent court to show cause why it should not set aside its order denying the People’s motion for a grant of immunity from criminal prosecution to a deponent in a civil action involving charges of consumer fraud and unfair competition, and compel him to testify on deposition. It is urged on behalf of respondent and real party in interest that, in the absence of specific legislative authorization, a trial court lacks jurisdiction to grant such immunity. We conclude that thé court is vested with such jurisdiction and we grant the peremptory writ.
The People commenced the civil proceedings against multiple defendants including Herbert Kaufman, the real party in interest herein, alleging inter alia that the defendants had engaged in a fraudulent scheme designed to mislead members of the public into believing that they could obtain employment in the advertising, modeling or entertainment fields by availing themselves of services offered by defendants.
During the course of pretrial proceedings the People arranged to take the deposition of Kaufman. He answered certain background questions but, on the advice of his counsel, refused to respond to any inquiry which tended to connect him with activities germane to the alleged fraud. In each instance the basis for his refusal was that a response to the question could lead to the production of evidence which may tend to incriminate him of criminal conduct and thus
infringe the constitutional proscriptions against such incrimination. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 13.)
The People then moved for an order which would provide Kaufman “with all possible protection against criminal prosecutions as a result of [his] testimony taken at [the deposition] or at the trial of the pending action” (hereinafter referred to as a protective order). The order as sought would have further limited the use of the deposition to the pending civil action, and would have provided that it would amount “to an effective grant of immunity” from criminal liability. As previously stated, respondent court denied the motion on the ground that it lacked jurisdiction to make such a protective order;
The People’s principal contention is that the trial court has jurisdiction to issue the proposed protective order pursuant to the provisions of Code of Civil Procedure section 2019. That section relates to depositions on oral examination and provides in subdivision (b), subsection (1), for numerous court orders designed to facilitate the disclosure of information, to minimize intrusion into private areas, and to maintain the security of such disclosures. Pertinent to the instant inquiry the subsection particularly provides: “the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.”
We had occasion to consider the scope of Code of Civil Procedure section 2019, subdivision (b), subsection (1), in the case of
In re Lifschutz
(1970) 2 Cal.3d 415, 437 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]. There a psychiatrist was imprisoned when adjudged in contempt of a court order requiring that he disclose on deposition in a civil action communications concerning the mental health of the plaintiff, a former patient. We held that the order to disclose did not infringe constitutional or statutory rights of the psychotherapist; that the psychotherapist-patient privilege (Evid. Code, § 1014) is limited by the patient-litigant exception (Evid. Code, § 1016) when the patient puts in issue particular matters relating to the condition of his mental health. We further held that when “inquiry
into the confidential relationship takes place before trial during discovery . . . the patient or psychotherapist may apply to the trial court for a protective order to limit the scope of the inquiry or to regulate the procedure of the inquiry so as to best preserve the rights of the patient. Section 2019, subdivision (b), subsection (1), of the Code of Civil Procedure grants the court broad discretion to issue ‘any . . . order which justice requires to protect the party or witness from annoyance, embarrassment or oppression.’ ”
(Id.
at p. 437.)
Interpreted broadly,
Lifschutz
recognizes that discretion rests in the trial court to control the scope and use of a deposition where a claim of privilege has been tendered and the limits of an exception to the privilege are at issue. The People urge that having held that section 2019 authorizes a protective order in civil proceedings to limit the use of a deposition where such use might otherwise infringe a confidential privilege, we should also hold that the section authorizes the issuance in civil proceedings of a protective order fashioned to render the right against self-incriminatio'n inviolate. It is contended that such could be accomplished by limiting the use of a deposition and the fruits thereof in the event criminal proceedings thereafter should be instituted against the deponent.
It is argued on behalf of the respondent and the real party in interest
that the Constitution and the Legislature have authorized judicial grants of immunity only in limited, specific instances (see generally Pen. Code, §§ 1324 and 1324.1 relating to transactional immunity) which do not include grants of use immunity in prosecutions on charges of deceptive advertising, and that in the absence of specific constitutional or legislative authorization a, court cannot act. (See Witkin, Cal. Evidence (2d ed. 1966) §§ 928-931.) Some of our earlier decisions are described as having held that a grant of immunity may not be accorded except when directed by the Legislature in specific applications. (See
In re Critchlow
(1938) 11 Cal.2d 751, 760 [81 P.2d 966]; see also
In re Tahbel
(1920) 46 Cal.App. 755, 759 [189 P. 804],)
Such decisions, however, might well be char
acterized as interpretations of statutory provisions which dealt
only
with specific grants of immunity. In no instance was it necessary to consider whether a statute, purporting to vest broad general discretion in the trial court to accord immunity in a variety of circumstances, did effectively vest that court with discretion to make valid grants of immunity especially in instances when justice and social policies implicit in legislative enactments compel disclosure.
In more recent years we have given a liberal construction to legislation which purports to relieve an alleged wrongdoer of the threat of criminal prosecution in exchange for incriminating information which the Legislature has deemed to serve some socially desirable policy. Thus, in
Byers
v.
Justice Court
(1969) 71 Cal.2d 1039 [80 Cal.Rptr. 553, 458 P.2d 465] (vacated on other grounds in
California
v.
Byers
(1971) 402 U.S. 424 [29 L.Ed.2d 9, 91 S.Ct. 1535] [plurality opinion]) we held that although there was no explicit statutory authorization for a grant of immunity when disclosure of incriminating information was compelled by a driver involved in a “hit and run” accident
(id.
at p. 1050), we could, nevertheless, judicially impose restrictions on the use of such evidence. “[W]e . . . hold that where compliance with section 20002 of the Vehicle Code [disclosure of information relative to assertion of claims for property damage] would otherwise be excused by an assertion of the privilege [against self-incrimination], compliance is . . . mandatory and state prosecuting authorities are precluded from using the information disclosed as a result of compliance or its fruits in connection with any criminal prosecution related
to the accident.”
(Id.
at pp. 1056-1057.) The statutory authorization for the grant of immunity in
Byers
was deemed to be implicit in the legislation which compelled disclosure, as such legislation would otherwise be rendered impotent.
We were persuaded in part to the conclusion in
Byers
that authorization existed for the judicial grant of use immunity by United States Supreme Court decisions which deem it to be “imperative to effect an accommodation that will permit government to collect vitally needed information without impairing the purposes of the privilege” against self-incrimination. (McKay,
Self-Incrimination and the New Privacy,
1967 Sup.Ct.Rev. 193, 204; see
Murphy
v.
Waterfront Comm’n.
(1964) 378 U.S. 52, 79 [12 L.ed. 2d 678, 695, 84 S.Ct. 1594];
Marchetti
v.
United States
(1968) 390 U.S. 39, 58-59 [19 L.Ed.2d 889, 903-904, 88 S.Ct. 697].) Review of the Supreme Court decisions cited in
Byers (Byers
v.
Justice Court, supra,
71 Cal.2d 1039, 1050-1053) suggested “a form of accommodation which provides the appropriate resolution of the conflicting interests involved in the present case. In brief, those decisions provide (1) that the state may require a person to disclose information otherwise subject to a claim of privilege if in place of the protection conferred by the privilege there is substituted another protection having the same scope and effect as the privilege, namely, immunity from use of the information or its fruits in connection with a criminal prosecution against the person; and (2) that, when consistent with both legislative intent and the effective enforcement of the criminal laws, a court may hold that such immunity exists, and therefore that disclosure is required,
despite the absence of any specific legislative grant of
immunity.”
(Id.
at p: 1049, italics added.)
It was concluded in
Byers
that as the imposition of usé restrictions would not (1) frustrate any apparent legislative purpose behind the “hit and run” statute, (2) unduly hamper criminal prosecutions of drivers involved in such accidents, or (3) preclude the Legislature from overriding the judicial grant of immunity if it wished to do so
{id.
at p. 1056), the court was authorized to grant immunity and impose a proper use limitation without infringing constitutional rights against self-incrimination and notwithstanding the absence of any specific legislative authorization. (Accord,
Bailey
v.
Superior Court
(1970) 4-Cal.App.3d 513 [84 Cal.Rptr. 436].)
We adhere to our rationale in
Byers.
It is manifest that a grant of immunity with a proper protective order
would not frustrate but would
further the legislative purpose of suppressing deceptive advertising. Noi would it unduly hamper the prosecution of persons who, in the judgment of the authorities, should be subjected to criminal proceedings. (Cf.
Marchetti
v.
United States, supra,
390 U.S. 39, 57-59 [19 L.Ed.2d 889, 902-904];
Byers
v.
Justice Court, supra,
71 Cal.2d 1039, 1051-1054.) Finally, if in the view of the Legislature, our application of Code of Civil Procedure section 2019 does not conform to legislative intent, that body remains free to redefine the limits of authorization. We thus conclude that pursuant to said code section the respondent court is vested with jurisdiction to issue an appropriate protective order.
It is additionally asserted in behalf of the respondent and the real party in interest that the sanctions sought to be imposed against defendants in the action based on alleged deceptive advertising are such that defendants are threatened in that very action with substantial penalties which are actually criminal in nature, and for that reason they cannot be compelled to incriminate themselves. The contention, in net effect, is that however broad the protective order purports to be prospectively, Kaufman is still subject to prosecution in the pending action and thus is exposed to penalties which however described are criminal in character.
The privilege against self-incrimination has been broadly construed to prohibit the use of compelled testimony which would be relevant not only in direct criminal proceedings, but also in proceedings which could lead to a criminal exposure.
(Counselman
v.
Hitchcock, supra,
142 U.S. 547.) Although
Counselman
recognizes “an ancient principle of the law of evidence, that a witness shall not be compelled, in any proceeding, to make disclosures or give testimony which will tend to criminate him or subject him to fines, penalties or forfeitures”
(id.
at pp. 563-564 [35 L.Ed. at p. 1114]), it is nevertheless held in that case that the objective of the constitutional privilege is “to insure that a person would not be compelled, when acting as a witness in any investigation, to give testimony
which might tend to show that he himself had committed a crime. The privilege is limited* to criminal matters,
but it is as broad as the mischief against which it seeks to guard.”
(Id.
at p. 562 [35 L.Ed. at p. 1114], italics added.)
In the seminal case of
Boyd
v.
United States
(1886) 116 U.S. 616 [29 L.Ed. 746, 6 S.Ct. 524], relied upon by amici, the United States sought only the forfeiture of personal property under a federal statute which provided that an importer who attempted to defraud the government of import duties could be “fined ... , or imprisoned . . , or both; and, in addition to such fine, such merchandise shall be forfeited.”
(Id.
at p. 617
[29 L.Ed. at p. 752].) It was held therein that the importer properly relied on the Fifth Amendment in refusing to comply with a subpoena of certain invoices because the forfeiture sought was a criminal penalty. “If an indictment had been presented . . . , upon conviction the forfeiture of the goods could have been included in the judgment. If the government prosecutor- elects to waive an indictment, and to file a civil information against the claimants — that is, civil in form — can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities . . . .? This cannot be. . . .”
(Id.
at p. 634 [29 L.Ed. at p. 752].)
Boyd,
which preceded
Counselman,
does not accord a broader application than that recognized in
Counselman,
that is, a restriction-of the application of the privilege “to criminal matters.”
Boyd
stands instead for the proposition that when proceedings are brought under a statute which provides for a criminal exposure as to which the privilege would be applicable, the prosecutor may not nevertheless compel a witness to incriminate himself by the device of limiting such proceedings to seek only the forfeiture of property, one of the express criminal sanctions set forth in the statute. Such actions “though they may be civil in form, are in their nature criminal”
(id.)
because they effect criminal sanctions.
Boyd
has no application in the instant case because, as will be seen, the statutory provision under which the action for deceptive advertising is brought does not provide for criminal sanctions.
The People in the civil action alleging deceptive advertising seek the imposition of penalties provided in Business and Professions Code section 17536 and Civil Code section 3370.1.
These provisions authorize sanctions in proceedings which otherwise do not seek the levying of traditional criminal penalties and which are described by the Legislature as being civil in nature. The penalty is unquestionably intended as a deterrent against future misconduct and does constitute a severe punitive exaction by the state, but neither it nor the process by which it is imposed is deemed criminal in nature for such reasons. The penalty does not include, for instance, the stigma of a criminal conviction nor does it permit such alternative punishment as the loss of personal freedom with which a defendant in a criminal action is threatened.
Additionally those procedures applicable in civil actions are traditionally utilized in the enforcement of the statutory provisions.
In
Madonna
v.
State of California
(1957) 151 Cal.App.2d 836 [312 P.2d 257], our appellate court held that the legislative description and treatment of a cause of action as civil in nature as being dispositive of the issue.
Although a “criminal” or “civil” label is not in itself determinative of the nature of the action, we deem the Legislature to have directed that criminal sanctions, including limitations of personal freedom and the stigma of a criminal conviction, are beyond the scope of proceedings based upon violations of prohibitions against deceptive advertising. Thus, the sanctions sought here to be imposed are distinguishable from those in
Boyd
v.
United States, supra,
116 U.S. 616. There, as we have previously noted,the government prosecuted the defendant for a criminal violation under a statute which provided for the full panoply of possible criminal penalties —loss of liberty, fine and forfeiture of the goods on which custom duties were not paid. It was held that the government could not, by seeking only the forfeiture
in lieu of other criminal sanctions,
convert a criminal trial into a civil proceeding with only civil consequences. In the instant case the civil penalty which alone is authorized by the statute. on which the present action is brought is not in lieu of criminal sanctions, and the statutory provision does not in any way purport to proscribe criminal conduct. (Accord,
People
v.
Witzerman, supra,
29 Cal.App.3d 169, 177;
People
v.
Superior Court (Kardori)
(1973) 35 Cal.App.3d 710, 713 [111 Cal.Rptr. 14].)
Although the issue was not squarely presented we have recently considered the nature of the penalties now challenged as being criminal in nature.
(People
v.
Superior Court (Jayhill) supra, 9
Cal.3d 283.) In addition to the rescission of consumer contracts procured through deceptive advertising, the state sought in that case an award of civil penalties (Bus. & Prof. Code, § 17536), and exemplary damages (Civ. Code, § 3294) for each
act of unfair competition. We held that in the absence of a then-applicable statutory command án award of exemplary damages on behalf of the public generally was unauthorized.
In so doing we categorized the civil penalties there sought as being in the nature of exemplary damages, when such damages are authorized.
(Id.
at p. 287.) The authorization to award exemplary damages, however, does not convert a civil action into a criminal action insofar as it affects constitutional protections in criminal proceedings. (We
therbee
v.
United Ins. Co. of America
(1971) 18 Cal.App.3d 266, 272 [95 Cal.Rptr. 678];
Gibson
v.
Gibson
(1971) 15 Cal.App.3d 943, 949 [93 Cal.Rptr. 617];
Toole
v.
Richardson-Merrell Inc.
(1967) 251 Cal.App.2d 689, 716-717 [60 Cal.Rptr. 398, 29 A.L.R.3d 988].)
For the foregoing reasons we conclude that an award of civil penalties as authorized by the Legislature in the instant case does not expose Kaufman to criminal sanctions against which he is protected by the privilege against self-incrimination.
The petition is granted and the peremptory writ is issued directing the respondent court, after fashioning and issuing an adequate protective order, to compel the real party in interest to respond on deposition and trial to all proper inquiries including those which, except for the protective order, would tend to incriminate him.
McComb, J., Tobriner, J., Mosk, J., Burke, J., Sullivan, J., and Clark, J., concurred.