Coy v. Superior Court of Contra Costa County

• Decision Date: 19 July 1962
• Citation: 58 Cal.2d 210,23 Cal.Rptr. 393,373 P.2d 457
• Court: California Supreme Court
• Parties: , 373 P.2d 457, 9 A.L.R.3d 678 Joe COY, Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; Lou WOLCHER et al., Real Parties In Interest. S. F. 20976.

Page 393

23 Cal.Rptr. 393

58 Cal.2d 210, 373 P.2d 457, 9 A.L.R.3d 678

Joe COY, Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent Lou WOLCHER et al., Real Parties In Interest.

S. F. 20976.

Supreme Court of California, In Bank.

July 19, 1962.

As Modified on Denial of Rehearing Aug. 15, 1962.

Fred F. Cooper, Oakland, for petitioner.

No appearance for respondent.

Marcel E. Cerf, Robinson & Leland, Herbert A. Leland, San Francisco, Leon G. Seyranian, Silverstein, Lempres & Seyranian, Oakland, and Bernard Allard, Fresno, for real parties in interest.

PETERS, Justice.

This is a proceeding to review by writ of mandate an order of the respondent court denying petitioner's motion to amend his complaint and also denying his several motions to require answers to certain interrogatories.

Petitioner is the plaintiff, and the real parties in interest are three of several defendants, in a pending action for damages for abuse of process. The parties will be referred to as 'plaintiff,' 'defendants,' and 'the court.'

Plaintiff alleged both special and general damages, and also sought punitive damages, with a total prayer of approximately $40,000. About five months before the date set for trial he sought to amend for the sole purpose of adding an allegation of damages for mental suffering in the sum of $15,000. In addition, he served each of the defendants (prior to pretrial, but after the date for pretrial had been set) with a set of interrogatories. The interrogatories were extensive. Counting each subinterrogatory as a separate question, there were 63 addressed to Wolcher, 30 addressed to Terry, and 32 addressed to Bebich. They may be summarized as: (a) those that dealt directly with the issues involved in the cause of action, (b) those that touched upon matters related to the cause of action, and (c) those that sought information as to the assets of the respective defendants. Wolcher answered by stating that the replies to 8 interrogatories could be found in his previously taken deposition, that many were 'irrelevant to the issues in this proceeding,' and that I 'refers to a privileged communication between attorney and client. * * *' He made direct answers to only 4 interrogatories, leaving several to which he neither replied nor objected, nor did he explain this failure. Terry directly answered none of the questions, stating only that answers to the first 4 could be found in his deposition, and that the 'balance of the questions asked (26) are irrelevant to the issues involved in this proceeding.' Bebich made definite reply to only 3 of the 32 interrogatories addressed to him, setting forth the objection that each of the remaining 29 were 'Definitely immaterial, irrelevant, and outside the issues of this case.' No further or other showing was made by any of the defendants. None of them saw fit to furnish this court with any deposition, in whole or in part, which may have touched upon any of the subjects involved in the interrogatories.

On receipt of the replies, plaintiff served notices of motions for orders requiring further response. Those motions were heard with the motion for an order authorizing amendment of the complaint. The trial court denied all motions.

But little attention need be given to the order denying the motion to amend. Although mandamus may be used to compel a trial court to allow an amendment of a pleading in some cases (Souza & McCue Const. Co. v. Superior Court, 57 A.C. 549, 20 Cal.Rptr. 634, 370 P.2d 338) a motion to amend of the type here involved rests largely in the discretion of the trial court. (Code Civ.Proc. § 473; Dos Pueblos Ranch & Imp. Co. v. Ellis, 8 Cal.2d 617, 67 P.2d 340; Greenstone v. Claretian Theo. Seminary, Claritville, 173 Cal.App.2d 21, 35, 343 P.2d 161; Vick v. Grasser, 169 Cal.App.2d 692, 338 P.2d 223.) The plaintiff has made no showing of an abuse of discretion. In such circumstances, mandamus will not lie (State Farm, etc., Ins. Co. v. Superior Court, 47 Cal.2d 428, 304 P.2d 13).

In reference to the orders denying the motions for further answers to the interrogatories, if the making of those orders constituted an abuse of discretion, mandate can be a proper remedy (West Pico Furniture Co. v. Superior Court, 56 Cal.2d 407, 415, 15 Cal.Rptr. 119, 364 P.2d 295). Contrariwise, unless the record shows such an abuse, mandamus will not lie (idem, at p. 415, 15 CalRptr. 119, 364 P.2d 295, quoting Ryan v. Superior Court, 186 Cal.App.2d 813, 816-817, 9 CalRptr. 147). In considering whether any abuse of discretion existed here, consideration must first be given to the objections raised by defendants in their replies.

As already pointed out Wolcher failed to reply or object to, or otherwise mention some of the 63 interrogatories addressed to him. Thus, as to these questions Wolcher failed to comply with the pertinent statute (Code Civ.Proc. § 2030). That section requires that the party addressed shall answer each interrogatory 'separately and fully * * * within 15 days after the service of the interrogatories * * * or,' state an objection in lieu of response. Wolcher neither answered nor objected within 15 days (or at all), and it does not appear that he requested or obtained an extension of that time. The hearing of the motion to require further answer was well beyond the time limitation set forth in the code section. This statutory provision, as it existed prior to its amendment, was considered by this court in the West Pico case, supra. At that time the statute required the party on whom interrogatories had been served to answer, or to serve and file separate objections within 10 days, together with a notice of motion to have his objections heard and determined. In that case, the real party in interest had following the code provision, but in his return to the alternative writ attempted to add certain new objections which had not been included with those served and filed within the 10-day period. It was there held that (p. 414, 15 Cal.Rptr. p. 121, 364 P.2d p. 297): 'There is no provision for the subsequent filing of objections. When Pacific filed its objections and noticed the same for hearing, and 10 days from the date of original service had elapsed, it could not, in the absence of a showing of good cause for relief from default, file further objections. It follows that the only grounds that existed at the time the trial court made its order, and on which it could then predicate the same, were the grounds stated in Pacific's objections as originally filed.' (Emphasis added.) Although the code section has been amended to alter the procedure by which objections are reviewed and determined, there still exists the requirement that the objections must be stated within a specified time limit. Where, as here, no objections of any kind have been made, the quoted and emphasized language of the West Pico decision is applicable. As to the interrogatories not mentioned in Wolcher's reply, there was no basis at all to justify the trial court's order refusing to compel further responses.

The objection interposed as the reason for not answering the bulk of the interrogatories was stated (variously by the 3 separate defendants) as irrelevancy and immateriality to the issues of the case. Such an objection cannot be used to deny discovery. In Greyhound Corp. v. Superior Court, 56 Cal.2d 355, p. 390, 15 Cal.Rptr. 90, 364 P.2d 266, it was pointed out that in adopting the discovery statutes the Legislature had intentionally done away with the older test of materiality to the issues, and had substituted therefor the test of relevancy to the subject matter. In the same opinion (pp. 393, et seq., 15 Cal.Rptr. 90, 364 P.2d 266) Twin Lock, Inc. v. Superior Court, 171 Cal.App.2d 236, 340 P.2d 748, was disapproved because of its holding that the Legislature had no constitutional power to alter the test of materiality to the issues. The same rule (relevancy to the subject matter) was applied in West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d 407, at pages 416 and 421, 15 Cal.Rptr. 119, 364 P.2d 295, in regard to interrogatories. Thus, these objections are without merit. An order denying a motion for further answer, if predicated solely on an invalid objection, must be deemed an abuse of discretion.

The second objection common to the 3 defendants is that some of the interrogatories had already been answered in the respective depositions of the parties. Viewed in a vacuum, as here, such an objection is meaningless. The replies merely stated (as to a specified number of the interrogatories) that the answers might be found in certain depositions. Neither the questions asked nor answers given in such depositions were set forth. No authority was cited for the proposition that an objection might be successfully interposed to an interrogatory on the sole ground that it had been previously asked and answered in a deposition. Subdivision (b) of section 2030 of the Code of Civil Procedure provides, in part, that 'Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the court, on motion of the deponent or the party interrogated, may make such protective order as justice may require.' (Emphasis added.) This language expressly permits the overlapping procedures, but affords a remedy when such a request is abused. The defendants made no motion to protect their rights as required by the code section. No claim of injustice or inequity has been made. Thus, the trial court was not presented with any proper reason for denying the motion for responses to these questions. It should also be pointed out that defendant made no attempt to show the trial court (and have not attempted to show this court) why a further answer to questions previously answered on a deposition would be a greater hardship than was the procedure which they chose. As was pointed out in Singer v. Superior Court,...