Oak Grove School District v. City Title Insurance

writ of prohibition is within the judicial discretion of the court. (Barnard v. Municipal Court, 142 Cal.App.2d 324 , 326 [ 298 P.2d 679 ]; First Nat. etc. Bank v. Superior Court, 19 Cal.2d 409 , 414 [ 121 P.2d 729 ]; Havemeyer v. Superior Court, 84 Cal. 327 , 401 [ 24 P. 121 , 18 Am.St.Rep. 192 , 10 L.R.A. 627 ]; 3 Within, Cal. Procedure, § 9, pp. 2472-2473.) The initial action in issuing or declining to issue a prerogative writ on ex parte application does not constitute the “determination of [a] cause” (Cal. Const., art. VI, §24) as to require a written decision. (Funeral Directors Assn. v. Board of Funeral Directors, 22 Cal.2d 104 , 106 [ 136 P.2d 785 ].) “It is only after an alternative writ has been issued that the matter becomes a ‘cause,’ the determination of which, i.e., the granting or denying of a peremptory writ, requires a written decision.” (Funeral Directors Assn. v. Board of Funeral Directors, supra, p. 106.) Accordingly the rule is well settled that a denial by the Supreme Court or the appellate court of an application for a writ without opinion is not res judicata of the legal issues presented by the application unless the sole possible ground of the denial was that the court acted on the merits, or unless it affirmatively appears that such denial was intended to be on the merits. (Hagan v. Superior Court, 57 Cal.2d 767 , 770 [ 22 Cal.Rptr. 206 , 371 P.2d 982 ] ; People v. Pipes, 179 Cal.App.2d 547 , 552 [ 3 Cal.Rptr. 814 ] ; Confidential, Inc. v. Superior Court, 157 Cal.App.2d 75 , 78 [ 320 P.2d 546 ]; McDonough v. Garrison, 68 Cal.App.2d 318 , 325 [ 156 P.2d 983 ]; see Funeral Directors Assn. v. Board of Funeral Directors, supra, pp. 107-110.) As stated in Confidential, Inc.: 11 The denial without opinion of an alternative writ adjudges nothing except that, for reasons sufficient to the court, the writ should not issue; this is true except in rare instances.” (P. 78.) In the instant case it docs not affirmatively appear from the order of denial that it was intended to be on the merits; nor can we say that as a matter of law the sole possible ground was that the court acted on the merits. There is no indication, moreover, that the denial in question was intended to be on the merits rather than an exercise of the discretion vested in the court respecting such matters. We conclude, therefore, that there is no indication of an intention on the part of the appellate court to foreclose plaintiff from resorting to its remedy on appeal as to thé issue of Judge Callaghan’s disqualification.

that a motion to tax costs pursuant to- section -1255a is an entirely new proceeding- because it “is the enforcement of a legal right, a cause of action, which arises upon the.entry, of a judgment of abandonment.”',’.

In order to properly dispose' of the question we must éorn sider the purport of section 1255a. That section provides that the plaintiff in an eminent domain proceeding may, within the time therein specified, abandon such proceeding by filing written notice of abandonment. Upon such abandonment, on motion of any party, a judgment shall be entered dismissing the proceeding and awarding the defendants their costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorneys’ fees. As provided in said section, these costs and disbursements, including expenses and attorneys’ fees, may be claimed in and by a cost bill which is to be prepared,' served, filed and' taxed as in civil actions, i.e., pursuant to section 1033 which has to do with cost bills, generally, in "civil actions' after judgment.

Turning to the applicability of section. 1255a to the instant case we find that upon the filing bf a- written notice of abandonment by plaintiff the court belbw made its judgment decreeing that the action was abandoned and dismissed,. This judgment, which was duly entered, also provided that defendants were entitled to have their costs and disbursements in accordance' with section 1255a. The said judgment ’ thus made and rendered was a .final judgment" from which an appeal could be taken because it determined all of the rights of the parties and required no further judicial action to give effect to its provisions. (§ 963, subd. 1; Gollard v. Bayless, 174 Cal.App.2d 827 , 828-829 [ 345 P.2d 299 ] Bakewell v. Bakewell, 21 Cal.2d 224 , 227 [130 P:2d 975]Lyon v. Goss, 19 Cal.2d 659 , 670 [ 123 P.2d 11 ]; Alpers v. Bliss, 145 Cal. 565 [ 79 P. 171 ]; Dempsey v. Underhill, 156 Cal. 718 [ 1006 P. 73 ]; Herrscher v. Herrscher, 41 Cal.2d 300 [ 259 P.2d 901 ].) Although the judgment was final in the sense that upon its entry it became an appealable .judgment, the eminent do?main proceeding was. nevertheless still a pending action and would continue as such until the time for appeal expired or until it was finally determined on appeal. (§ 1049; Pacific Gas & Elec. Co. v. Nakano, 12 Cal.2d 711 , 714 [ 87 P.2d 700 , 121 A.L.R. 417 ]; Estate of McDonald, 37 Cal.App.2d 521 , 526 [ 99 P.2d 1115 ].)

“The awarding of costs is but an incident to the

Union High School Dist. v. Capistrano Beach Acreage Co., 188 Cal.App.2d 612 , 615 [ 10 Cal.Rptr. 750 ]; Bellflower City School Dist. v. Skaggs, 52 Cal.2d 278 , 281-282 [ 339 P.2d 848 ]; People v. Superior Court, 145 Cal.App.2d 683 , 688 [ 303 P.2d 628 ].) The purpose of section 1255a, therefore, is to recompense the defendant for expenses which he is impelled to incur by reason of the plaintiff’s failure to carry the proceeding through to conclusion, thereby depriving the defendant of any award for his property. (City of Inglewood v. O. T. Johnson, Corp., supra, p. 591.) In order to claim these costs and disbursements the defendant must claim them by a verified cost bill filed and presented as provided for in section 1033. If the plaintiff is dissatisfied with any of the costs and disbursements claimed, he must file a motion to have the same taxed by the court in which the judgment was rendered, or by the judge thereof at chambers. (§ 1033.) By not objecting within the time and in the manner authorized by statute the plaintiff waives the right to object to any part of the memorandum which complies with the statute and the cost bill becomes conclusive. (Hansen v. Farmers A. Inter-Ins. Exchange, 12 Cal.App.2d 493 , 494 [ 55 P.2d 900 ].) However, where the items are properly objected to by the plaintiff they are put in issue, and the burden of proof is upon the defendant to establish the. costs which are objected to. (City of Los Angeles v. Abbott, 129 Cal.App. 144 , 153 [ 18 P.2d 785 ]; Estate of Bauer, 59 Cal.App.2d 161 , 164 [ 138 P.2d 721 ]; Stenzor v. Leon, 130 Cal.App.2d 729 , 735 [ 279 P.2d 802 ]; Whitaker v. Moran, 23 Cal.App. 758 , 761 [ 139 P. 901 ]; Senior v. Anderson, 130 Cal. 290 , 299-300 [ 62 P. 563 ]; Lomita Land & Water Co. v. Robinson; 154 Cal. 36 , 52-53 [ 97 P. 10 , 18 L.R.A. N.S. 1106 ].) It is not necessary that the plaintiff accompany the motion to. tax costs with any affidavit, but at the hearing he may present any competent evidence, oral or written. (Senior v. Anderson, supra; Lomita Land & Water Co. v. Robinson, supra; and see Port San Luis Harbor Dist. v. Port San Luis Transp. Co., 213 Cal.App.2d 689 , [ 29 Cal.Rptr. 136 ].) If the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and .services therein listed were necessarily incurred by the defendant (Port San Luis Harbor Dist. v. Port San Luis Transp. Co., supra, p. 696; Haydel v. Morton, 18 Cal.App.2d 695 , 696 [ 64 P.2d 954 ]), and the burden of showing that an item is not

properly chargeable or is unreasonable is upon the plaintiff. (Wilson v. Nichols, 55 Cal.App.2d 678 , 682-683 [ 131 P.2d 596 ]; Von Goerlitz v. Turner, 65 Cal.App.2d 425 , 431-432 [ 150 P.2d 278 ]; Shemanski v. Sair, 124 Cal.App.2d Supp. 885 , 887-888 [ 268 P.2d 576 ].) However, where the claim is made for a disbursement which on its face does not appear to be proper or is for a disbursement the necessity for which is doubtful, and the item is properly challenged upon a motion to tax costs, the burden is on the claimant to establish the necessity for the disbursement. (Stenzor v. Leon, supra, 130 Cal.App.2d 729 , 735; Miller v. Highland Ditch Co., 91 Cal. 103 , 105-106 [ 27 P. 536 ] ; Estate of Bauer, supra, p. 164.) Moreover, if the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action. (Whitaker v. Moran, supra, p. 761; City of Los Angeles v. Abbott, supra, p. 153.) The determination of the items allowable as costs is largely a question for the trial court in its discretion, and if no abuse of discretion is shown, the action of the trial court will not be disturbed. (Von Goerlitz v. Turner, supra, p. 432; Stenzor v. Leon, supra, p. 735.)

Prom the observations hereinabove made with respect to the pertinent applicable legal principles, it is apparent that the motion to tax costs made pursuant to section 1255a is a part and a continuation of the original eminent domain proceedings, within the meaning of the rule laid down in Jacobs v. Superior Court, 53 Cal.2d 187 [ 1 Cal.Rptr. 9 , 347 P.2d 9 ], so as to preclude a disqualification under section 170.6. The essence of the rule stated in Jacobs is that in a supplemental or continued hearing on matters involved in the original proceeding an application under section 170.6 for disqualification of the same judge who heard the original proceeding is not proper or timely and is not permitted under the section. (See Stafford v. Russell, 201 Cal.App.2d 719 , 721 [ 20 Cal.Rptr. 112 ]; People v. Paramount Citrus Assn., Inc., 177 Cal.App.2d 505 , 511-512 [ 2 Cal.Rptr. 216 ]; Dennis v. Overholtzer, 179 Cal.App.2d 110 , 111-112 [ 3 Cal.Rptr. 458 ].) The rationale of Jacobs is that if a disqualification were permitted under section 170.6 in matters which are continuations of a prior proceeding, it would

mean that the judge who tried the case, and who is ordinarily in the best position to pass upon the questions involved in the supplementary proceedings, could by a mere general allegation- of prejudice, and without any judicial determination of the facts, be disqualified from hearing such matters. There can be little doubt that a motion to tax .costs is a special proceeding incidental to the original proceedings which dispose of the action. It is so contemplated by section 1033, which provides that motions to tax are to be passed upon “by the court in which the judgment was rendered, or by the judge thereof at chambers.” It is also a matter of common knowledge among lawyers and of judicial notice by the courts that motions to tax costs are generally and usually heard by the judge who presided over the trial in which the judgment of- which the costs are an incident was rendered. Moreover, in the proceeding provided for in-section 1255a, the condemner by moving for a dismissal of the eminent domain proceeding charges itself in the judgment of dismissal with the obligation of the costs and disbursements therein provided. Such a dismissal carries with it, by virtue of said statute, the imposition of an award in favor of the condemnee for such costs and disbursements including attorneys’ fees. (Capistrano Union High School Dist. v. Capistrano Beach Acreage Co., supra, 188 Cal.App.2d 612 , 615.) These costs and disbursements arise out of and are necessarily relevant and material to the issues involved in the eminent domain action, and the judge who tried the case is in the best position to pass upon the propriety of these costs and disbursements, particularly the question of the reasonableness of attorneys’ fees. (See Mountain View Union High School Dist. v. Ormonde, 195 Cal.App.2d 89 [ 15 Cal.Rptr. 461 ]; Port San Luis Harbor Dist. v. Port San Luis Transp. Co., supra, 213 Cal.App.2d 689 , where the motion to tax costs under section 1255a was heard by the judge who tried the main eminent domain case.) Accordingly, under the rule stated in Jacobs, a proper motion to disqualify Judge Callaghan under section 170.6 was. required to be made prior to the commencement of the trial of the eminent domain action, and such motion could not be entertained when it was made for the first time immediately prior to the commencement of the hearing of the motion to tax costs. (See Jacobs v. Superior Court, supra.) We need not, therefore, consider the respective claims concerning the timeliness of the

motion under section 170.6 in the other respects urged by the respective parties on this appeal.

Disqualification of Judge Under Code of Civil Procedure Section 170

Plaintiff asserts that Judge Callaghan was disqualified for bias and prejudice by virtue of the statement made on May 1, 1961, when he said “. . . t arn a little biased in this ease, very much so, because I don’t like the way it was handled.” It is claimed, moreover, by plaintiff, that Judge Callaghan at that time declared his own disqualification as provided for in section 170 and that no further proceedings were required to compel Ms disqualification. The record discloses, however, that the judge was then discussing his disqualification under section 170.6 and that his statement “Therefore, I disqualify myself” was made prior to the utterance in question. Court and counsel were then discussing the efficacy of the motion to disqualify under section 170.6. It is apparent from the record, therefore, that at that time Judge Callaghan was not making a voluntary declaration of his disqualification, but that he was disqualifying himself under the belief that he had no other alternative under the peremptory challenge procedure provided for in section 170.6. TMs is apparent, furthermore, from the action of the judge in setting aside his said disqualification when he was asked to reconsider the same on the basis that he was not disqualified under section 170.6. A further indication of this circumstance is also indicated in the conduct of plaintiff, when, after the disqualification was set aside, it specifically requested the judge to voluntarily declare his disqualification under section 170, subdivision 5, and he declined to do so.

Upon the refusal of the judge to voluntarily disqualify himself, plaintiff thereupon filed a written motion objecting to the hearing of such matter pursuant to section 170, subdivision 5. Judge Callaghan struck said motion' from the files on the ground that it did not state sufficient facts constituting the [alleged disqualification. .A judge is without power to pass upon the question of .his o.wn disqualification' where an." appropriate .issue of fact is presented -by the statement charging bias or prejudice. (People ex rel. Dept. of Public Works v. McCullough, 100 Cal.App.2d 101 , 109 [ 223 P.2d 37 ]; Mackie v. Dyer, 154 Cal.App.2d 395 , 399 [ 316 P.2d 366 ] ; In re Harrington, 87 Cal.App.2d 831 , 834-835 [ 197 P.2d 783 ].) However, where the statement is insufficient,

sertion is made by defendants that the situation is analogous to section 170.6 and that the principles made applicable by the cases to that section with respect to timeliness are- applicable here. The language in section 170, subdivision 5, however, is not the samé as that contained in section 170.6. The pertinent language in section 170, subdivision 5, is as follows: “The statement of a party objecting to the judge on the ground of his disqualification, shall be presented at the earliest practicable opportunity, after his appearance and discovery of the facts constituting the ground of the judge’s disqualification, and in any event before the commencement of the hearing of any issue of fact in the action or proceeding before such judge. ’ ’ (Italics added.)

The important distinction between sections 170.6 and 170, subdivision 5, is obvious. The former provides for what amounts to a peremptory challenge of a judge, and is a procedure whereby prejudice is established by a sworn statement without judicial determination of the fact. (Johnson v. Superior Court, 50 Cal.2d 693 [ 329 P.2d 5 ].) In essence it is directed to a judge personally on the basis that such judge is believed to be biased or prejudiced. Accordingly, when the judge is known prior to the commencement of the trial or any continuation thereof the statute requires its prompt exercise, otherwise, as stated in Jacobs, litigants would be permitted to gamble on a favorable decision, and if unfavorable, seek another judge’s ruling on substantially the same issues. (P. 191 of 53 Cal.2d.) Section 170, subdivision 5, however, requires that bias or prejudice be established as a fact to the satisfaction of a judicial body. That fact may not become known to the litigant until after the trial or proceeding has commenced. It may even become known for the first time after judgment. Accordingly, the cases have interpreted section 170, subdivision 5, to mean that the ground of disqualification must be urged at the “earliest practicable opportunity’’ after the discovery of the facts, subject to the limitation that if the facts are discovered by a party before trial the requirement of timeliness is not satisfied if he waits until after the trial has commenced. (1 Witkin, Cal. Procedure, § 54, pp. 178, 179; Keating v. Superior Court, supra, 45 Cal.2d 440 , 447; Mayo v. Beber, 177 Cal.App.2d 544 [ 2 Cal.Rptr. 405 ]; People v. Wade, 150 Cal.App.2d 281 , 285 [ 309 P.2d 841 ]; Krebs v. Los Angeles Ry. Corp., 7 Cal.2d 549 , 553 [ 61 P.2d 931 ].) The rationale of the right to urge dis

qualification where the ground therefor exists in fact is. further demonstrated by the rule which permits disqualification to become a basis for attack on the judgment itself where the ground of disqualification is not known until after judgment. (See Giometti v. Etienne, 219 Cal. 687 [ 28 P.2d 913 ]; Cadenasso v. Bank of Italy, 214 Cal. 562 [ 6 P.2d 944 ].)

■ In the present case the written motion to disqualify was made prior to the commencement of the motion to tax. It was made on May 10th and prior to the commencement of the subject hearing. While it is true that the “facts” constituting the ground of disqualification became known to plaintiff on May 1st when Judge Callaghan made the remarks in question, the said judge did on May 1st make an order disqualifying himself. That order was not set. aside until May 10th. There was no reason for plaintiff, to have made a motion to disqualify during that interim. When . the disqualification was set aside on the basis thaUthe judge ..should not have declared himself disqualified under. seetion:fl70.6, plaintiff immediately made his motion under section T70, subdivision 5. Under the circumstances, we believe-that plaintiff acted “at the earliest practicable opportunity. ”

The vital question for consideration in this casé is whether the-statement sets forth sufficient facts constituting the bias or prejudice of the judge. • The requirements are' succinctly stated-in Calhoun: “Section 170 of the Code of Civil Procedure requires a Verified statement showing facts, not conclusions, from which-the claimed disqualification appears to be probable, that is, -from which facts the disqualification appears to follow as a conclusion of law. . Furthermore, the stated facts must make the bias appear probable as to the issue or issues to he tried.” (P. 260 of 51 Cal.2d.) In the present case the-pertinent portions of the statement (entitled “Motion-for Order of Disqualification”) reads as follows’:'-:-“The-plaintiff . -hereby moves the Court . . . to disqualify -itself under section 170 of the California Code of Civil Procedure "on the,, basis that the said court on May 1, 1961, -declared itself to be biased and prejudice [sic] against said plaintiff and their attorneys. I believe that said: Oak Grove School District' cannot have a fair and "just trial before the said judge for said action and'the Motion to Tax Costs now pending by reason of the interest, prejúdice or bias of the said Judge Raymond G. Callaghan. . . . This Motion is based upon the records and files herein and the statement in

therefore, that plaintiff’s statement fully meets the requirements stated in Calhoun, and that it contained sufficient facts to require the decision of another judge as to the disqualification of Judge Callaghan.

Plaintiff’s statement being legally sufficient, it estopped Judge Callaghan from determining his own qualifications to sit as the trial judge in the proceeding, and it had the immediate effect of depriving him of jurisdiction to decide the motion to tax costs. (In re Harrington, supra, 87 Cal.App.2d 831 ; 1 Witkin, supra, p. 175.) As pointed out by Within, the filing of a sufficient statement has the effect of temporarily suspending the challenged judge’s jurisdiction in order to permit him to file his answer to such statement and to have the matter of his disqualification thereupon determined by another judge. The said judge may after the hearing thereof determine that the challenged judge is not disqualified, in which event the latter’s jurisdiction is reinstated. In the present ease Judge Callaghan was ousted of jurisdiction temporarily when the statement was filed, and lost jurisdiction permanently when he did not file an answer to the statement within the mandatory five-day limit. (Rosenfield v. Vosper, 70 Cal.App.2d 217 , 222 [ 160 P.2d 842 ]; In re Harrington, supra, pp. 834-835; Miller & Lux, Inc. v. Superior Court, 19 Cal.App.2d 628 , 633 [ 66 P.2d 689 ]; 1 Witkin, supra, p. 175.) Accordingly, Judge Callaghan being so disqualified, he totally lacked power to hear and determine the instant cause, and therefore the superior court had no jurisdiction to act while said judge sat therein. (See 1 Witkin, supra, § 29, p. 160.)

Defendants make the further contention that the motion for disqualification was not made in strict compliance with section 170, subdivision 5, in that it was not made or verified by a party to the action or proceeding. No objection, however, was interposed by defendants as to the form of the subscription or the verification. The motion to strike -was made on the basis that the disqualification statement did not state sufficient facts to show bias and prejudice. The matter ;was heard upon the merits. Such a technical objection cannot .now be urged on appeal for the first time. (See Lapique v. Kelley, 82 Cal.App. 586 , 592 [ 256 P. 229 ]; Rosenfield v. Vosper, supra, p. 224; Kuhland v. Sedgwick, 17 Cal. 123 .) Furthermore, the contention is without merit. The statute provides that “ [e]very such statement . . . shall be verified

that Attorney Sturges was present when the questioned remarks of Judge Callaghan were made. Although the verification in the instant case does not state the reasons why it was not made by one of the parties as section 446 appears to require, it has been held that where the averments in the affidavit of the attorney or agent state that the facts contained in the pleading verified are within the knowledge of the affiant such averment must be deemed a sufficient statement why the party did not make the verification. (Newman v. Bird, supra; H. G. Bittleston Law etc. Agency v. Howard, supra, pp. 360-362.)

In this case the affiant attorney qualified the statement that the contents of- the motion were true of his own knowledge with the statement “except as to the matters which are therein stated on his information or belief and as to those matters that he believes it to be true.” An attorney cannot make a verification based on information or belief. (§ 446.) In the present case the only statement in the motion made on “belief” was the averment that the affiant believed that the school district could not have a fair trial because of the judge’s prejudice or bias. This statement was not one of fact, but one of opinion. It added nothing to the 'requirement that a motion to disqualify must set forth sufficient facts constituting bias or prejudice, and even if stricken or disregarded, would not affect' its legal sufficiency. Moreover, the said averment does not by its language purport to qualify the averment that the facts stated were within the knowledge of the affiant. (See H. G. Bittleston Law etc. Agency v. Howard, supra, pp. 360-362.)

Defendants rely on Bompensiero v. Superior Court, 44 Cal.2d 178 [ 281 P.2d 250 ], where the trial court struck the statement on the ground that it was formally defective because it was not verified. This case does not help defendants. ' While the opinion in Bompensiero does not disclose whether a motion was made to strike the statement on the basis that it was not verified, that case is readily distinguished from the case at bench in that there the statement was not verified at all.

The Question Relative to Depositions

Inasmuch as the subject motion to tax costs must be retried we must dispose of the question as to the propriety of the taking of depositions. ' After judgment and prior to the hearing on the motion to tax costs, plaintiff .noticed the deposi

tions of one of the property owners (L. C. Bean) and two of the attorneys of record. Upon motion duly made by defendants, the trial court ordered the service of the notice of the taking of said depositions quashed. The basis of the lower court’s ruling was that plaintiff was not entitled to take depositions after judgment, and particularly that plaintiff was not entitled to a deposition as an incident of discovery on a motion to tax costs.

Defendants contend that the trial court’s order was appeal-able, and that plaintiff, not having appealed from the order, is now estopped from urging the question on this appeal. This assertion is without merit. An order quashing the service of a notice of taking deposition is not an appealable order. Such an order is not included among the relatively small group of orders designated in section 963, nor is it made appealable by a specific statute. An order is not appealable unless expressly so declared. (Title Ins. & Trust Co. v. California etc. Co., 159 Cal. 484 , 486-488 [ 114 P. 838 ]; Peninsula Properties Co. v. County of Santa Cruz, 106 Cal.App.2d 669 , 675 [ 235 P.2d 635 ]; 3 Witkin, Cal. Procedure, § 9, p. 2150.) Therefore, orders dealing with pleadings, parties, evidence and trial procedure are generally nonappealable. (3 Witkin, supra, § 19, p. 2162.) Accordingly, the following orders relating to evidence have been held to be nonappealable, to wit: order granting or denying right to inspect documents (Collins v. Corse, 8 Cal.2d 123 [ 64 P.2d 137 ]; Dowell v. Superior Court, 47 Cal.2d 483 [ 304 P.2d 1009 ]; Estate of Fraysher, 47 Cal.2d 131 [ 301 P.2d 848 ]) ; and order denying motion to quash subpoena duces tecum and order requiring appearance (Ahrens v. Evans, 42 Cal.App.2d 738 [ 109 P.2d 991 ]). A notice to take deposition relates to evidence; therefore, an order quashing the same clearly comes within the foregoing principles and is nonappealable.

Defendants’ motion to quash was made on the ground that plaintiff was not legally entitled to take a deposition in a proceeding to tax costs because the cause had already been reduced to a judgment. The motion to quash was submitted to the court for determination as a matter of law. In granting the motion the court below analogized section 1255a to section 1033 and concluded that a deposition was not warranted in a motion to tax costs proceeding. At the time the motion to quash was heard and determined, section 2016, subdivision

Pass Assessment, 190 Cal. 532 , 537 [ 213 P. 974 ] ; Tide Water Assoc. Oil Co. v. Superior Court, 43 Cal.2d 815 , 822 [ 279 P.2d 35 ].) The right to costs is purely statutory or dependent upon some rule of court, and did not exist at common law. (Ridge v. Boulder Creek etc. School Dist., 60 Cal.App.2d 453 , 462 [ 140 P.2d 990 ] ; Heimann v. City of Los Angeles, 91 Cal.App.2d 311 , 314 [ 204 P.2d 955 ].) Moreover, an order taxing costs made after entry of judgment has been held to be a special order made after judgment from which appeal will lie. (Smallpage v. Turlock Irrigation Dist., 26 Cal.App.2d 538 , 541 [ 79 P.2d 752 ]; Hand v. Carlson, 138 Cal.App. 202 , 210 [ 31 P.2d 1084 ]; § 963.)

The depositions in the instant ease were directed specifically to the seeking of information relative to the issues “upon abandonment and the attorney’s fees to which the defendant is entitled.” The record discloses that when these depositions were noticed and the motion to quash was heard, the only pleadings on file with respect to the matter of costs and disbursements was defendants’ verified memorandum of costs and plaintiff’s motion to tax which was unverified and unsupported by any affidavit. At that time section 2016, subdivision (a), provided that in a special proceeding a deposition could only be had therein when “a question of fact has arisen. . . .’ ’ As we have pointed out above the filing of a motion to tax costs need not be accompanied by an affidavit and is sufficient in itself, if in proper form, to put in issue the items objected to in the motion. (Senior v. Anderson, supra, 130 Cal. 290 ; Lomita Land & Water Co. v. Robinson, supra, 154 Cal. 36 .) We should take note, moreover, that under the provisions of section 2016, subdivision (a), as it now reads, it is no longer necessary that a question of fact has arisen before a deposition may be taken in a special proceeding. Such a deposition may be taken after the service of the petition or the appearance of the defendant or respondent. Accordingly, in a proceeding to tax costs the first pleading is the memorandum of costs. Upon its filing the taking of a deposition with respect to the items claimed would be proper and timely.

Therefore, whether we consider the motion to tax costs as a part of the eminent domain action which was then pending or as a special proceeding, the noticing of the depositions in question was proper and timely. This leaves for determination the question whether the trial court abused its

discretion in quashing the service of the notice to take depositions. While the discovery statutes give the trial court wide discretion in making such orders as may be necessary to protect parties and deponents from abuse or misuse of depositions (Greyhound Corp. v. Superior Court, 56 Cal.2d 355 , 378 [ 15 Cal.Rptr. 90 , 364 P.2d 266 ]; Carlson v. Superior Court, supra, 56 Cal.2d 431 , 437), “there can be no room for the exercise of such discretion if no ground exists upon which it might operate.” (Carlson v. Superior Court, supra, p. 438, fn. omitted.) If there is no legal justification for such exercise of discretion it must be held that an abuse occurred. (Carlson v. Superior Court, supra, p. 438.)

Section 2016, subdivision (d), authorizes that depositions, when taken, may be used on the “hearing of a motion or an interlocutory proceeding. ...” The discovery statutes are to be liberally construed, because their purpose is to further the efficient and economical disposition of cases according to right and justice on the merits. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355 .) In the instant case plaintiff sought testimony concerning an issue of fact which did not exist at the time of the trial of the eminent domain action, i.e., the question of attorneys’ fees. This issue came into being upon the abandonment of the eminent domain action and it would be an unwarranted limitation of the discovery statutes to deny plaintiff the right to inquire into matters relating to this new factual issue unless defendants can show good cause therefor. Section 2019 of the Code of Civil Procedure provides that the discretion conferred on the trial court with respect to depositions may be exercised only upon a showing of good cause. (Carlson v. Superior Court, supra, p. 437.) As stated in Carlson: “The very language of the statute thus limits the discretion which it has created to situations wherein good cause has been shown, or where justice requires the exercise of that discretion.” (P. 438.) In the present case plaintiff was entitled to take the depositions as a matter of right in the absence of any showing by defendants that this right should be suppressed. (Carlson v. Superior Court, supra, pp. 438-440.) No such showing was made here. The only grounds upon which defendants moved to prohibit the taking of depositions was that they were sought after the judgment of abandonment and that depositions are not permissible on a motion to tax costs. Both of these grounds are untenable.

Accordingly, it 'must be held that the trial court abused its discretion in making the order quashing the taking of the subject depositions.

The judgment is reversed with the following directions: (1) that the motion to tax costs be retried before a judge, other than the Honorable Raymond G. Callaghan, to be designated by the presiding judge of the Superior Court of Santa Clara County; and (2) that plaintiff be permitted to take the depositions, the taking of which was ordered quashed herein, at a time and place to be fixed by the said presiding judge.

Bray, P. J., and Sullivan, J., concurred.

Respondents’ petition for a hearing by the Supreme Court was denied August 20, 1963. Schauer, J., was of the opinion that the petition should be granted.