I dissent.
In almost identical form the questions which counsel asked of defendant were approved by this court in Singer v. Superior Court (1960) 54 Cal.2d 318 [5 Cal.Rptr. 697, 353 P.2d 305]. That Singer involved written interrogatories and this case an oral deposition is a trivial distinction. Thus the issue was no longer in doubt, and clearly any declination to reply was "without substantial justification. ’ ’
The Court of Appeal properly found the trial court’s refusal to require the defendant to answer the questions “was an abuse of discretion; there was no sound ground to justify the denial of the request made by plaintiff.’’ This amounted to the finding contemplated by section 2034, subdivision (a), of the Code of Civil Procedure that “the refusal was without substantial justification. ’ ’ Indeed, here the refusal was without any justification. The trial court no longer had the power to review that issue.
The Court of Appeal could have ordered the refusing deponent or his attorney to pay to the examining party the amount of the reasonable expenses incurred in obtaining the order. Instead, however, the Court of Appeal ordered the trial court to set aside its previous order of denial, to order the defendant to answer the questions, and at that time the trial court “shall hear and determine any motion which may be made by [plaintiff] for an award of costs. ’ ’
The majority refer back to section 2034, subdivision (a), and interpret the word “may’’ to invest the trial court with renewed discretion after remand of the matter from the Court of Appeal. Such construction seems strained in view of the appellate opinion holding the trial court had already abused its discretion. The manifest purport of the Court of Appeal’s order was that the trial court merely hear the plaintiff’s motion to ascertain the amount of the costs reasonably incurred.
Under the circumstances of this case, after the clearly *606erroneous refusal of the trial court to require defendant to answer the questions, the same court’s subsequent denial of all costs incurred by the plaintiff in obtaining the order to which he was previously entitled can only be characterized as bordering on the capricious. The majority compound the imposition upon plaintiff by approving this arbitrary trial court ruling that the refusal to answer questions was not “without substantial justification” after the Court of Appeal had previously determined it was.
The principle of full and candid discovery before trial is thus dealt a severe blow, for an implication will persist that discovery may be achieved only by the party with the most resources or staying power.
The record demonstrates that the plaintiff sought an answer to Ms questions for approximately one year. He lost both time and treasure to obtain that to which Singer held in 1960 he was undeniably entitled. Certainly both the law and elementary fairness dictate he recoup at least his out-of-pocket "reasonable expenses. ’ ’
I would grant a writ of mandate.
Sullivan, J., concurred.