Burke v. Superior Court of Sacramento County

• Decision Date: 18 June 1969
• Citation: 455 P.2d 409,78 Cal.Rptr. 481,71 Cal.2d 276
• Court: California Supreme Court
• Parties: , 455 P.2d 409 Joseph E. BURKE et al., Petitioners, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; FIDELITY & DEPOSIT COMPANY OF MARYLAND, Real Party in Interest. Sac. 7843.

Page 481

78 Cal.Rptr. 481

71 Cal.2d 276, 455 P.2d 409

Joseph E. BURKE et al., Petitioners, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent FIDELITY & DEPOSIT COMPANY OF MARYLAND, Real Party in Interest.

Sac. 7843.

Supreme Court of California In Bank.

June 18, 1969.

Roy A. Sharff and Ronald D. Rattner, San Francisco, for petitioners.

No appearance for respondent.

Rust, Hoffman & Mills and Michael C. Gessford, Sacramento, for real party in interest.

PETERS, Justice.

Petitioners seek a writ of mandate to compel respondent superior court to set aside its orders of July 25 and November 25, 1968, respectively sustaining objections to petitioners' requests for admissions and denying petitioners' motion for further responses to written interrogatories. ¹ This is an appropriate case, under the standard established in Oceanside Union School Dist. v. Superior Court of San Diego County, 58 Cal.2d 180, 185, fn. 4, 23 Cal.Rptr. 375, 378, 373 P.2d 439, 442, ² in which to review discovery orders by use of the prerogative writs rather than relegating petitioners to review on appeal from the final judgment.

On October 7, 1965, Phil Rauch filed an action against petitioner L. A. Westby for the sum of $95,000 plus interest claimed to be due on a promissory note. Upon the issuance of a bond by defendant and real party in interest Fidelity and Deposit Company of Maryland, Rauch caused a writ of attachment to be issued and levied upon real estate owned by Westby. Trial of the action resulted in judgment in favor of Westby and petitioner Burke, as receiver for some of Westby's affairs.

Petitioners thereupon filed an action for wrongful attachment against the bonding company. To support their claim that expenses incurred in defending the suit on the promissory note is a proper item of damages to be recovered in the wrongful attachment suit, petitioners alleged in their unverified complaint that: 'The levy of said attachment * * * was valid and regular on its face and, for that reason, Plaintiffs made no motion nor brought any proceeding to discharge or dissolve said attachment, as such would have been unsuccessful and an idle and futile act; the only method by which said attachment could have been dissolved was to successfully defend said action and win it on its merits.' ³

The bonding company filed an unverified one-paragraph answer to petitioners' complaint, denying all allegations of the complaint. ⁴

Petitioners allege that they know of no facts supporting the bonding company's denial insofar as it relates to the abovequoted allegation in the complaint that the attachment could not have been set aside. They further allege that they initiated discovery proceedings in order to determine whether this denial was sham or based upon facts unknown to them; they sought to discover the bonding company's 'contentions on the issues and the facts allegedly supporting such contentions.'

Petitioners first propounded requests for admissions that the levy of the attachment was regular and valid on its face, that there had been no motion or proceeding to dissolve or discharge the attachment, that such a motion or proceeding would have been unsuccessful, idle, and futile, and that a successful defense of the underlying action was the only way the attachment could be dissolved. The bonding company objected to these requests for admissions by stating that they called for legal conclusions, not admissions of fact. The respondent court sustained the objections.

Thereupon petitioners propounded written interrogatories to the bonding company, asking 'Do you contend' that the levy of attachment was not valid and regular on its face, or that petitioners could successfully have moved or otherwise proceeded to dissolve the attachment prior to defending the underlying action? The interrogatories requested that if the bonding company did make such contentions it 'state all facts, grounds and evidence which you claim supports your contention(s).' Another interrogatory requested the bonding company to 'State all the facts upon which you have based your denial of * * * all * * * the allegations contained in plaintiffs' complaint.'

The bonding company replied that the last-mentioned interrogatory was 'ambiguous, unclear, and, therefore, objectionable.' Its reply to the other interrogatories was that they were 'objectionable as calling for a legal opinion and conclusion of defendant. The matter(s) referred to * * * (are) issue(s) in this lawsuit which (are) to be decided by the tryer (sic) at the time of trial.' The respondent court sustained bonding company's objections to the interrogatories on the ground that the interrogatories 'call for the legal opinion and conclusions of the defendant.' It sustained the objection to the general interrogatory on the ground that it was a 'shot gun question and in effect seeks to have the defendant divulge its entire theory of defense.'

The discovery laws in California are designed to expedite the trial of civil matters by (1) enabling counsel to more quickly and thoroughly obtain evidence and evidentiary leads, and thus to more quickly and effectively prepare for trial, and (2) enabling counsel to 'set at rest' issues that are not genuinely disputed. (Cembrook v. Superior Court of City and County of San Francisco, 56 Cal.2d 423, 429, 15 Cal.Rptr. 127, 364 P.2d 303; Greyhound Corp v. Superior Court In and For Merced County, Supra, 56 Cal.2d 355, 371, 376, 15 Cal.Rptr. 90, 364 P.2d 266.)

Discovery necessarily serves the function of 'testing the pleadings,' i.e., enabling a party to determine what his opponent's contentions are and what facts he relies upon to support his contentions. (Singer v. Superior Court of Contra Costa County, 54 Cal.2d 318, 323--325, 5 Cal.Rptr. 697, 353 P.2d 305; Universal Underwriters Ins. Co. v. Superior Court for Los Angeles County, 250 Cal.App.2d 722, 728, 58 Cal.Rptr. 870.) '(T)o say that 'contentions' are not a proper subject of interrogatories is to subvert the whole theory of the (discovery) rules and to make it more difficult for a party to find out what the case against him is about than it was under the old practice. * * * To the extent that interrogatories are used to clarify the contentions of the parties, they are an adjunct to the pleadings, * * *. Liberal use of interrogatories for the purpose of clarifying and narrowing the issues made by the pleadings should be permitted and encouraged by the courts.' (4 Moore, Federal Practice (2d ed.) 33.17, pp. 2311--2312.) Professor Moore's observation, relating to the federal discovery rules from which California's discovery laws are largely derived, is even more pertinent to California practice since, as we have noted, the federal system of pleading, unlike California's, permits a party to clarify his opponent's contentions through devices such as a motion for more definite statement, thus making it less crucial for a party in federal court to obtain information concerning contentions through discovery. (Singer v. Superior Court of Contra Costa County, Supra, 54 Cal.2d 318, 323, 5 Cal.Rptr. 697, 353 P.2d 305.)

Accordingly, a defendant in California courts may be required through discovery to disclose not only the evidentiary facts underlying his affirmative defenses (Singer v. Superior Court of Contra Costa County, Supra, 54 Cal.2d 318, 323--325, 5 Cal.Rptr. 697, 353 P.2d 305 (defendant required to disclose the facts underlying his allegations of contributory negligence and assumption of risk)) and denials (Durst v. Superior Court of Los Angeles County, 218 Cal.App.2d 460, 464--465, 32 Cal.Rptr. 627 (defendant required to disclose the facts underlying his denial that plaintiff had been injured or disabled)) but also whether or not he makes a particular contention, either as to the facts or as to the possible issues in the case. (Universal Underwriters Ins. Co. v. Superior Court for Los Angeles County, Supra, 250 Cal.App.2d 722, 728, 58 Cal.Rptr. 870; see also Sheets v. Superior Court In and For Los Angeles County, 257 Cal.App.2d 1, 13, 64 Cal.Rptr. 753.) A plaintiff, of course is subject to analogous requirements.

Similarly, when a party is served with a request for admission concerning a legal question properly raised in the pleadings he cannot object simply by asserting that the request calls for a conclusion of law. He should make the admission if he is able to do so and does not in good faith intend to contest the issue at trial, thereby 'setting at rest a triable issue.' (Cembrook v. Superior Court of City and County of San Francisco, Supra, 56 Cal.2d 423, 429, 15 Cal.Rptr. 127, 364 P.2d 303.) Otherwise he should set forth in detail the reasons why he cannot truthfully admit or deny the request. (Lieb v. Superior Court In and For Orange County, 199 Cal.App.2d 364, 368, 18 Cal.Rptr. 705.)

In the present case, petitioners seek to determine whether the bonding company really contends that the attachment was vulnerable to pretrial attack. Although the right to determine an opponent's contentions through discovery procedures extends to all civil cases, its exercise is particularly important in a case such as this one involving the defendant's use of a type of general denial that has been justly condemned--one which does not distinguish between 'those allegations which are unquestionably true and those which it is desired in good faith to put in issue' and which therefore imposes upon both the court and the plaintiffs (Williamson v. Clapper, Supra, 88 Cal.App.2d 645, 647, 199 P.2d 337, 339).

An answer which by means of an indiscriminate general denial denies virtually indisputable matters--such as matters of public record--is highly suspect ⁵ and may leave a plaintiff wondering whether other allegations which he honestly regards as beyond dispute, but which are not inherently indisputable, are really disputed by the defendant.

The interrogatories in question ask, as did the interrogatories approved...