Cornwall v. Santa Monica Dairy Co.
| Decision Date | 24 January 1977 |
| Parties | Daniel CORNWALL, Plaintiff and Appellant, v. SANTA MONICA DAIRY COMPANY, etc., Defendant and Respondent. Civ. 49270. |
| Court | California Court of Appeals Court of Appeals |
Ron Minkin and Leonard C. Kohn, Los Angeles, for plaintiff and appellant.
Robert J. Feely and Allan S. Garber, Panorama City, for defendant and respondent.
A complaint for personal injuries was filed 31 Oct. 72. Santa Monica Dairy Company, dba 'Edgemar Farms,' filed its answer to the complaint on 23 May 73. On 20 Aug. 74 defendant filed interrogatories to plaintiff Cornwall, 1 having mailed them to Cornwall's attorney on 16 Aug. 74. On 1 Oct. 75, defendant moved for an order to compel answers to its interrogatories or for a dismissal. The motion was heard 20 Oct. 75. The court ordered that plaintiff answer the interrogatories within 30 days and found that Cornwall's failure to file same had been wilful, ordering Cornwall to pay $200 to the moving defendant for attorneys' fees, within such 30-day period. No answers were filed and, on 16 Dec. 75, defendant filed a motion to dismiss Cornwall's action. The motion was heard on 15 Jan. 76 and was granted, the court again finding that Cornwall acted wilfully.
This is an appeal by Cornwall from the order ('judgment,' Code Civ.Proc. § 581d) dismissing his cause of action because of his failure to respond to the interrogatories served on him. (Code Civ.Proc. § 2034, subd. (d).) 2 The order (judgment) is appealable. (Code Civ.Proc. § 904.1.)
Plaintiff contends the burden of proving abuse of the trial court's discretion has been met in that there was no showing that Cornwall acted wilfully. Defendant contends the burden of proof (Evid.Code §§ 500, 605) of non-wilfulness is on plaintiff. We agree. (Frates v. Treder, 249 Cal.App.2d 199, 204, 57 Cal.Rptr. 383 (1967).)
Plaintiff filed the declaration of his attorney which states, in essence, the plaintiff, a Canadian, is now a resident of Hawaii and although his attorney wrote to him there the letter was returned to the attorney unclaimed. Thereafter, the attorney attempted, without success by various means, to communicate with Cornwall.
Plaintiff argues that the interrogatories were not sent to him, personally, so that it cannot be said that he acted wilfully in not answering them. We disagree with plaintiff. If a plaintiff wishes to avail himself of the California courts, he owes a duty to comply with its rules, such as the rules of discovery. To hold otherwise, would permit a litigant to disappear and not be obliged to comply with our discovery statutes. The failure to respond to his attorney's letter may not have been wilful but a failure to keep his attorney posted on his whereabouts may, under the circumstances, be deemed 'wilful.' There is nothing in plaintiff's attorney's declaration which sheds any light on the point and, for all that defendant knew, plaintiff may have been deceased. While in the Frates, 249 Cal.App.2d, 57 Cal.Rptr. 383 case, the court emphasized that three years and passed between...
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Deyo v. Kilbourne
...on whom interrogatories were served has the burden of showing that the failure was not willful. (Cornwall v. Santa Monica Dairy Co., supra, 66 Cal.App.3d 250, 252-253, 135 Cal.Rptr. 761.) Before examining the nature of permissible sanctions, we must consider the situation where answers or o......
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