“In 12 every contract there is an implied covenant of good faith and fair dealing that neither party will do 13 anything which injures the right of the other to receive the benefits of the agreement.”
How later courts described this case
- “In 12 every contract there is an implied covenant of good faith and fair dealing that neither party will do 13 anything which injures the right of the other to receive the benefits of the agreement.”
Written by the judges who cited it.
The opinion
CARTER, J.
I concur in the conclusion reached in the majority opinion and agree generally with the reasoning upon which it is based. I think it proper, however, to point out that the basic legal concept in the majority opinion is out of harmony with both McClatchy Newspapers v. Superior Court, 26 Cal.2d 386 [ 159 P.2d 944 ], and Hays v. Superior Court, 16 Cal.2d 260 [ 105 P.2d 975 ], as neither of those cases squarely holds that there is a clear duty on the trial court to enforce the statutory right to a deposition and compel a witness to testify, and the Hays ease particularly, which is cited with approval in the McClatchy case, holds directly to the contrary. I wrote a dissenting opinion in the Hays case and a concurring opinion in the McClatchy case in which I endeavored to expound the rule which the majority opinion in the case at bar appears to adhere to. In my concurring opinion in the McClatchy case, I stated at page 399: “The specific problem presented is whether a party to an action may, as a matter of right, require a witness to answer questions on the taking of his deposition relevant only to issues which *567 have been eliminated from the case by dismissal of the cause of action or defense which raised such issues. This problem has been the subject of considerable controversy among trial judges and lawyers. The decisions of this court and of the District Courts of Appeal on the subject are in hopeless conflict, and it is little wonder that trial judges should have difficulty in determining the proper course to pursue when problems of this character are presented to them. One line of cases headed by San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30 [ 99 P. 359 , 17 Ann.Cas. 933], answers this question in the affirmative. Another line of cases headed by the case of Hays v. Superior Court, 16 Cal.2d 260 [ 105 P.2d 975 ], answers it in the negative. The majority opinion answers it in both the affirmative and negative, as it cites the Hays case with approval and then attempts to distinguish it from the case at bar. ’ ’
If the majority of this court have now decided to adhere to the rule announced in the line of cases headed by San Francisco Gas & Electric Co. v. Superior Court, supra, as the majority opinion in the case at bar appears to indicate, then the Hays case should be overruled and we would thereby eliminate the confusion which has arisen since the decision of that case. While it is apparent that the majority have now departed from the rule in the Hays case and have in effect overruled it sub silentio, I think the administration of justice in this state would take a step forward if the majority saw fit to expressly overrule that case and announce that the rule of San Francisco Gas & Electric Co. v. Superior Court, supra, would be the rule by which lawyers and trial judges would be governed in the future.