Durst v. Superior Court of Los Angeles County

• Decision Date: 22 July 1963
• Court: California Court of Appeals Court of Appeals
• Parties: Walter Claude DURST, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, and LUMBERMENS MUTUAL CASUALTY COMPANY, Real Party in Interest. Civ. 27273.

Page 627

32 Cal.Rptr. 627

218 Cal.App.2d 460

Walter Claude DURST, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, and LUMBERMENS MUTUAL CASUALTY COMPANY, Real Party in Interest.

Civ. 27273.

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

July 22, 1963.

David M. Durst, Santa Monica, and Chandler P. Ward, Los Angeles, for petitioner.

No appearance for respondent.

Morgan, Holzhauer, Burrows, Wenzel & Lynberg, Los Angeles, for real party in interest.

PER CURIAM.

This is a proceeding to review by writ of mandate an order of respondent court denying petitioner's motion to require answers to interrogatories.

In the action pending in respondent court, petitioner, as plaintiff therein, seeks to recover under a personal disability policy issued by defendant, real party in interest herein, ¹ alleging that he was totally disabled from injuries arising out of an automobile accident on December 5, 1957. By its answer, defendant denied that plaintiff was injured in the accident or that he sustained disability and therefore nothing was due plaintiff under the policy.

Pursuant to Requests for Admissions, defendant made the following admissions: That plaintiff was in an automobile accident on December 5, 1957; that its policy of insurance issued to plaintiff was in full force and effect and that the premiums were fully paid on the date of the accident; that plaintiff gave to defendant due notice of claim of loss, and submitted proof of loss indicating accidental injuries had been sustained in the accident; that plaintiff entered the Santa Monica Hospital on December 25, 1957, and that he remained there until February 5, 1958. It was further admitted that plaintiff had had two physical examinations at defendant's request, one on January 25, 1958, the other on March 27, 1962, by doctors of defendant's choice.

Defendant filed denials to certain of the requests for admission: It denied that 'plaintiff sustained accidental bodily injury in an automobile accident on December 5, 1957' (No. 5); that in the said accident plaintiff 'fractured his left ninth rib,' 'sustained a subepicardial injury,' and 'sustained shock of the nervous system' (Nos. 6, 7, and 8); that, as a direct and proximate result of injuries sustained in said accident, 'plaintiff was totally disabled' within the terms of defendant's policy of insurance (No. 18); and that 'the disability described in REQ. No. 18, was whole and continuous within twenty days of the accident on December 5, 1957, and prevented plaintiff from performing any and every duty pertaining to his occupation, for a period of fifty-two consecutive weeks and thereafter from engaging in any occupation or employment for wage or profit to the date of the service of this request for admission.' (No. 19)

Plaintiff thereafter served upon defendant and filed with respect court the following six written interrogatories pursuant to section 2030, Code of Civil Procedure:

'1. In response to Plaintiff's Request for Admissions No. 5 herein you denied that plaintiff sustained accidental bodily injury in an automobile accident on December 5, 1957. State if such denial was based upon or supported by any fact or facts known to you, your agents, servants or employees which is contrary to or inconsistent with the claimed truth of plaintiff's assertion therein that he did in fact sustain accidental bodily injury in said automobile accident.

'2. If your answer to INT. No. 1 is affirmative, state the fact or facts upon which you based your denial or which support your denial of Plaintiff's Request for Admission No. 5, stating separately as to each such fact, the names, addresses and telephone numbers of all persons having knowledge of said facts, stating separately as to each any documents, statements, report, photograph, motion picture and physical evidence which can be used to prove the same or any part thereof, stating further the name, address and telephone number of the person or persons having the present possession thereof.

'3. If your answer to INT. No. 1 is negative, state whether or not you or any of your agents, servants, or employees conducted an investigation or inquiry as to the truth or falsity of the facts sought to be admitted by Plaintiff's Request for Admission No. 5.

'4. If your answer to INT. No. 1 is negative, state with particularity all basis, reasons, and grounds for your non-factual denial of Plaintiff's Request for Admission No. 5.

'5. State separately and which particularity all facts known to you, your agents, servants and employees which will prove or tend to prove, in whole or in part, that the plaintiff did not suffer or sustain the following injuries in the automobile accident on December 5, 1957:

'(a) fracture of his left ninth rib;

'(b) subepicardical injury;

'(c) shock of the nervous system.

'6. State all facts known to you, your agents, servants and employees which are contrary to or inconsistent with the truth of the matters of fact which are sought to be admitted, but which were denied by you, set forth in Plaintiff's Requests for Admissions Nos. 18 and 19 previously served in this action, stating separagely as to each such fact, the names, addresses and telephone numbers of all persons having knowledge of said facts, stating separately as to each any documents, statements, report, photograph, motion picture, and physical evidence which can be used to prove the same or any part thereof, stating further the name, address and telephone number of the person or persons having the present possession thereof.'

To each of the above interrogatories, defendant made identical objection, as follows: 'Upon the ground that it calls for a conclusion, calls for hearsay, is too broad and is unreasonable.' No claim is made that the information is not relevant to the subject matter of the action, or that it is privileged. (Code Civ.Proc. §§ 2030(b), 2016(b).) We therefore look to the objections raised and the showing made by defendant, bearing in mind that plaintiff is entitled to demand answers to his interrogatories as a matter of right unless defendant has stated valid objections thereto. (West Pico Furniture Co. of Los Angeles v. Superior Court, 56 Cal.2d 407, 422, 15 Cal.Rptr. 119, 364 P.2d 295; Coy v. Superior Court, 58 Cal.2d 210, 220, 23 Cal.Rptr. 393, 396, 373 P.2d 457, 460.) 'An order denying a motion for further answer, if predicated solely on an invalid objection, must be deemed an abuse of discretion.' (Coy v. Superior Court, supra, 58 Cal.2d p. 217, 23 Cal.Rptr. p. 396, 373 P.2d p. 460.)

It is no objection that an answer might compel a party to give hearsay evidence, and insofar as the interrogatories may require the opinion or conclusion of the witness, such alleged incompetency, of itself, is not a proper objection. (Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 392, 15 Cal.Rptr. 90, 364 P.2d 266; West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d p. 417, 15 Cal.Rptr. p. 123, 364 P.2d p. 299; Smith v. Superior Court, 189 Cal.App.2d 6, 12, 11 Cal.Rptr. 165, 88 A.L.R.2d 650.) But the interrogatories herein do not call for opinions or conclusions; they ask only for the facts upon which defendant relies for its denials. See Singer v. Superior Court, 54 Cal.2d 318, 5 Cal.Rptr. 697, 353 P.2d 305, in which it is held that questions relating to the facts underlying the contentions of the parties are proper and should be answered. That case holds that a party is entitled to such information; that requests limited to facts presently known to a defendant upon which it predicates its defenses are not uncertain, do not call for opinions, and are not too broad or oppressive.

We thus proceed to a consideration of the remaining objections. It is not clear as to the respect in which defendant claims the interrogatories are 'too broad' and 'unreasonable.' The questions were not extensive, and are not of the 'shotgun' variety to which reference is made in West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d page 419, 15 Cal.Rptr. page 125, 364 P.2d page 301, which defendant has cited to this court. In its argument in support of its objections in the trial court, ² defendant states that interrogatories numbers 1, 2, 3, and 4 call for a conclusion; that numbers 5 and 6 'each ask that this defendant state 'all facts' upon which the defendant based his denials to the plaintiff's contention that he was physically injured and/or disabled as a result of the automobile accident of December 5, 1957. Such interrogatories are unreasonable and again ask for a conclusion, since the cause of the plaintiff's alleged injuries or disabilities are a matter of opinion.' Singer v. Superior Court, supra, is applicable here. These contentions are not sustainable.

It was also argued (with no factual showing) that interrogatories, 'a number of which are present in the pending interrogatories,' were filed and additional discovery proceedings were had in another action arising out of the same accident, entitled 'Durst v. American Motorists Insurance Company, et al.' pending in the Santa Monica Municipal Court; that objections identical to those made herein were interposed in the other action and were sustained; that plaintiff's subsequent petition for writ of...