Cembrook v. Superior Court In and For City and County of San Francisco

• Decision Date: 23 February 1961
• Citation: 11 Cal.Rptr. 225
• Court: California Court of Appeals Court of Appeals
• Parties: Michael CEMBROOK, Petitioner, v. SUPERIOR COURT OF the State of Callfornia, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent. Civ. 19564.

Page 225

11 Cal.Rptr. 225

Michael CEMBROOK, Petitioner, v. SUPERIOR COURT OF the State of Callfornia, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent.

Civ. 19564.

District Court of Appeal, First District, Division 1, California.

Feb. 23, 1961.

Hearing Granted April 19, 1961.

Opinion vacated 15 Cal.Rptr. 127.

Allen Spivock, San Francisco, for petitioner.

Sedgwick, Detert, Moran & Arnold, San Francisco, for Sterling Drug, Inc.

TOBRINER, Justice.

Petitioner seeks mandate to compel response to lengthy requests for admissions from Sterling Drug, Inc., real party in interest (hereinafter referred to as defendant), pursuant to discovery procedures incorporated in Code of Civil Procedure, § 2033. As we point out infra in more detail, the advantage of expendition, which the procedure contemplated, could be lost in the complexity of diffuse and unanswerable questions. We therefore cull the questions to sanction those that call for direct and simple answers.

The requests emanate from a suit alleging fraudulent mistrepresentations as to defendant's product, Bayer Aspirin. The complaint framed two causes of action, one in warranty and the other in fraud. Petitioner by stipulation struck the first count. The second count alleged that defendant 'falsely represented in widespread advertising that use of its 'Bayer Aspirin' for 'headaches, common colds,' etc. was harmless and safe,' but that defendant knew that its 'aspirin contains an acidic substance which could and did cause chemical destruction of the tissues of * * * [petitioner's] gastrointestinal tract and may necessitate surgical removal of his stomach.' Petitioner regularly from 'about 1934' took 'about six or eight tablets every other day believing said defendant's advertisements and package directions that they were 'safe' * * *.' Petitioner continued that practice until August 16, 1956. He now contends that he has been damaged in the amount of $500,000.

Petitioner further alleges that after examination of the advertisements and inserts he has discovered that the advertisements 'prior to the year of 1952, did not mention or make any reference to 'seeing a doctor if pain persists' after taking same.' He alleges that prior to the year of 1954 inserts in each package of the product 'did not mention or make any reference to 'seeing your doctor if pain persists' after taking same.'

Petitioner submitted to defendant the requests for admissions; defendant objected to all of them. The court sustained the objections to the requests upon the apparent basis that, in the language of the section, they were 'improper.' After hearing a motion to set aside the ruling, the court denied the motion. Petitioner contends that the court abused its discretion in so doing and that section 2033 of the Code of Civil Procedure requires responses to the submitted questions.

The commentators have described the general purposes of the section. As observed by Witkin, California Evidence, section 536, page 586, 'C.C.P. 2033(a), based on Fed. Rule 36, provides that a party may serve of the adverse party 'a written request for the admission by the latter of the genuineness of any relevant documents described in the request or of the truth of any relevant matters of fact set forth in the request.'' When served with such a request the party may meet it by either a 'sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters'; or alternatively by 'written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part * * *.' Code of Civil Procedure, § 2033. In substance, 'Section 2033, like its counterpart Federal Rule 36, contains closely knit provisions calculated to compel admissions as to all things that cannot reasonably be controverted.' (Louisell, 'Discovery Today,' 45 Cal.L.Rev. (1957), pp. 486, 505.)

DeMeo, California Deposition and Discovery Practice, (second edition), section 12.07, page 292, points out that '* * * there are no California cases construing section 2033, based on Rule 36,' and we must therefore rely principally upon federal cases for guidance. One of these, In re Reinauer Oil Transport, Inc., D.C.Mass. 1956, 19 F.R.D 5, defines the basic nature of the procedure in this language: 'Requests under * * * Rule 36, 28 U.S.C.A., should be used to obtain admission of facts about which there is no real dispute. They should deal with singular relevant facts which can be clearly admitted or denied and not with complicated situations involving many distinct and vital controversial issues of facts. They should not be used as a means of covering the entire case and every item of evidence.' At page 5.

We think that, if we are to derive the full benefit of section 2033, the courts should not impose upon it a restrictive construction. For example, we do not think that a properly framed and readily answerable request should be held to be objectionable solely because it relates to matters that might 'reasonably be controverted' (Louisell, supra), or is addressed to facts about which there may be 'real dispute' (In re Reinauer, supra). The admissions are only for the purposes of the single case in issue; they are not to be used against the defendant elsewhere (Code of Civil Procedure, § 2033(b)). Consequently the plaintiff may properly ask for an admission of a fact as to which there appears on the face of the pleadings, to be a 'real dispute.' Requests for admissions can be the most useful and effective of all the new discovery procedures, and the sooner they are employed within their valid and fair scope, the more useful the procedure will be.

There is a clear line between the simple, direct question, that can be readily answered by an admission or a denial, and an unanswerable query of the type, 'When did you stop beating your wife?' The difficulty with most of the requests propounded in this case is that they fall in this category. In order to answer them at all, the defendant would be required to engage in complex explanation, calling for a host of conclusions and opinions. This type of request is not encompassed in the procedure.

As a general proposition, then, the requests should be direct and simple and not weighted by coloring adjectives which defeat direct and simple answers. Turning, again, to the Federal precedents, they hold that the requests should be confined to facts which can be clearly admitted (see In re Reinauer Oil Transport, Inc., supra, 19 F.R.D. 5), and that are not complex (see Benton v. McCarthy, D.C.S.D.N.Y.1959, 23 F.R.D. 235; Waider v. Chicago, R. I. & P. R. Co., D.C.S.C.Iowa 1950, 10 F.R.D. 376). Such requests should not call for answers which must be 'couched with many qualifications and limitations.' Knowlton v. Atchison, T. & S. F. Ry. Co., D.C.W.D.Mo.1951, 11 F.R.D. 62, 66.

The purpose of the new procedures for discovery is, of course, the expedition of litigation, not the exploitation by one party of the other by forcing answers to questions not reasonably simple and relevant. If the procedure is to be subverted into the interjection of complex and sweeping compilations of unanswerable questions, the objective of the Legislature will be thwarted. More time will be consumed in unraveling the knots of the inquiries than will be saved by avoiding the proof of facts not controverted.

We have analyzed the requests presented here and we group them in appropriate categories, finding those proper which call for an admission of a clear and simple fact and those improper which are couched in imprecise language, call for conclusion and opinion, pose compound questions, seek admission of facts which constitute the ultimate issue, assume disputed facts, or call for answers which clearly lie beyond the actual knowledge of the questioned party or the reasonably ascertainable knowledge of such party.

I. Request for admission of clear and simple fact.

The requests listed below fulfill the mandate of Knowlton v. Atchison, T. & S. F. Ry. Co., supra, 11 F.R.D. 62: 'Requests made under said rule should be simple and direct, so that they may be categorically admitted or denied, without too many qualifications, or limitations, or require modifying facts to be stated. If they are not so framed, then effective use of said rule is frustrated.' At page 66. Pursuant to this standard, defendant should be required to answer the following questions:

'1. The advertisements of 'Bayer Aspirin' tablets in national magazines and local dailies prior to the year of 1952 did not mention or make any reference to 'seeing a doctor if pain persists' after use of same.

' (a) If incorrect, kindly give the year when said ads first so stated.

* * *

* * *

'2. The inserts of said defendant in containers of said Bayer Aspirin tablets prior to the year of 1954 did not mention or make any reference to 'seeing your doctor if pain persists.'

' (a) If incorrect, kindly give the year when said inserts first so stated.'

* * *

* * *

' [c] (2) That defendant stated in its ads frequently that it was 'safe' to take said Bayer Aspirin.

* * *

* * *

'4. When said ads in 1952 and said inserts in 1954, or such year as defendant admits, commenced to say: 'See your doctor if pain persists', defendant did not therein call to the attention of plaintiff and others that this applied also to frequent 'headaches' and/or 'colds.'

' (a) When said ads and inserts urged the 'seeing of a doctor (physician) if pain persists', they added: 'This is particularly true of continuing severe pains of Arthritis, Rheumatism, Sciatica, Bursitis and Neuritis.'

* * *

* * *

'7. It was only in the year of 1955 and thereafter that defendant's said ads mentioned that Bayer Aspirin could be taken 'without stomach upset.'

* * *

* * *

'8. Said ads started to mention that Bayer Aspirin ...