Frates v. Treder

• Decision Date: 06 March 1967
• Citation: 57 Cal.Rptr. 383,249 Cal.App.2d 199
• Court: California Court of Appeals Court of Appeals
• Parties: Manuel A. FRATES and Elsie Frates, Plaintiffs and Appellants, v. Mary Jane TREDER, Defendant and Respondent. Civ. 29920.

Page 383

57 Cal.Rptr. 383

249 Cal.App.2d 199

Manuel A. FRATES and Elsie Frates, Plaintiffs and Appellants, v. Mary Jane TREDER, Defendant and Respondent.

Civ. 29920.

Court of Appeal, Second District, Division 4, California.

March 6, 1967.

Finston, Kurtz & Schneider, Hollywood, and Philip M. Kurtz, Los Angeles, for plaintiffs and appellants.

James R. Mead, Parker, Stanbury, McGee, Peckham & Garrett, Los Angeles, for defendant and respondent.

BISHOP, Associate Justice. ^*

Plaintiffs brought this action, February 20, 1961, for the damages suffered by each of them in an automobile accident for which the defendant Mary J. Treder was said to be responsible. That defendant propounded a series of interrogatories to each plaintiff in June of 1962. Having received no answer from either plaintiff, on April 28, 1965, she filed a notice that she would move for an order striking plaintiff's complaint and dismissing their action, and for an order for attorney fees for preparing for the motion. The orders were made, one for attorney fees, in the amount of $100 on May 24, 1965, and the other striking the complaint and dismissing the action on June 7 following. In addition to the minute entries of these orders, another was signed and filed this same June 7, reading: 'Good cause appearing therefor, the above entitled action is hereby dismissed under the provisions of section 2034--D of the Code of Civil Procedure as to Defendant Mary Jane Treder.' The matter is before us on an appeal by the plaintiffs from the minute orders of May 24 and June 7 and from the written and signed order of the same date. We are affirming the three orders.

Plaintiffs' brief argues for reversals under two headings. The first is: 'Plaintiffs have not wilfully failed to serve answers to interrogatories within the purview of California Code of Civil Procedure Section 2034--D.' There is no code section designated as '2034--D,' but there is a subdivision (d) of section 2034 which, as appellants stress, contains the word 'wilfully': '* * * (if) a party wilfully fails to serve and file answers to interrogatories submitted under Section 2030 of (the Code of Civil Procedure), after proper service of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action * * * or impose such other penalties of a lesser nature as the court may deem just, and may order that party or his attorney to pay to the moving party the reasonable expenses in making such motion, including reasonable attorney's fees.'

Appellants have not questioned the 'proper service' of the interrogatories, but this seemed to us to be a critical question, first to be answered. The interrogatories were served on the plaintiffs by mailing them to their counsel. That their counsel received them appears certain, and the contrary is not suggested. Does such service put a duty on the plaintiffs to reply? The affirmative answer is found in subdivision (d) of section 2030 of the Code of Civil Procedure, where it is provided: '(d) Service of interrogatories under this section may be made upon any party or his attorney in the manner provided in Chapter 5, Title 14, Part 2 (commencing at Section 1010) of this code.' We discover in section 1010: 'Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter * * *.' Service by mail is prescribed in sections 1011 and 1012 of 'this chapter.' Papers so received are effectively served. (See Crummer v. Whitehead (1964) 230 Cal.App.2d 264, 268, 40 Cal.Rptr. 826, 828--829; Forslund v. Forslund (1964) 225 Cal.App.2d 476, 485, 37 Cal.Rptr. 489, 494 et seq.; Humstock v. Estate Den. Corp. (1943) 22 Cal.2d 205, 211, 138 P.2d 1, 4, 148 A.L.R. 968; Lyydikainen v. Industrial Accident Comm. (1939) 36 Cal.App.2d 298, 301--302, 97 P.2d 993.)

That plaintiffs' counsel, to whom the interrogatories were mailed, received them is not in question; counsel's conduct with respect to them can be understood on no other theory. In a letter addressed to defense counsel by one of plaintiffs' attorneys, under date of June 19, 1962, it appears: 'This will confirm telephone conversation of yesterday with your secretary wherein it was agreed that this office may have to and including September 18, 1962, within which to answer interrogatories on behalf of Manuel A. Frates and Elsie Frates in connection with the above-captioned matter.' On September 20 there was another letter to confirm 'an open extension subject to ten days written notice within which to answer the interrogatories on behalf of Manuel A. Frates and Elsie Frates.' June 14, 1963, 'written notice' was given, followed by another letter, plaintiffs' counsel to the defendant, confirming extension to August 31, and then again another. On January 30, 1964, a letter was sent to plaintiffs' attorney: 'As you know we have sent Interrogatories to you--in this case. You have now had them since June, 1962. My principal is pressing me for an answer to those Interrogatories. * * * This will serve as written notice to you to please file your Answer to the Interrogatories within ten days or I shall be compelled to seek the assistance of the Court to have Answers filed.' On December 24, 1964, this un-Christmaslike letter to plaintiffs' attorneys was sent: 'Since we have not received the answers to interrogatories * * * I will, within five days from this date, move the court for an order striking your complaint.' On April 28, 1965, there was filed a notice that a motion for an order striking the complaint, dismissing the action and for a reasonable attorney's fee for preparing the motion, would be heard May 10, 1965. It was heard on May 24; the motion for attorney fees was submitted, and then granted later in the day. The motion to strike and dismiss was continued to June 4.

By way of a defense to the motion, plaintiffs' counsel filed on June 4, 1965, points and authorities and a declaration by one of its members. ¹ As we shall have occasion to refer to it, we append the declaration as a footnote, omitting matters which are otherwise of record.

As already noted, two orders were made, one May 24, 1965, requiring the payment of $100, to help pay defendant's attorney and the other striking the complaint and dismissing the action, made June 7, 1965.

Plaintiffs' argument, in their opening brief, in support of their appeal from the last order, concludes with this paragraph:

'In the instant case, it is most important to note that defendant has not established any evidence whatsoever which would indicate that plaintiffs wilfully, consciously or intentionally failed to serve answers to the interrogatories herein. The Declaration of Philip M. Kurtz filed June 4, 1965, does, in fact, establish that plaintiffs had no knowledge whatsoever as to the filing or service of interrogatories. The Declaration goes into great detail as to the mental condition of plaintiff Manuel A. Frates and as to the fact that plaintiffs' counsel were unable to locate their clients so that the interrogatories could be answered and filed with the Los Angeles Superior Court. The Declaration, in other words, establishes that not only was there no wilful failure by plaintiffs to serve answers to interrogatories but that there was no knowledge whatsoever by plaintiffs of the filing or service of interrogatories or the necessity by them to answer the same.'

Several facts stand unchallenged. Interrogatories were propounded to the plaintiffs in June of 1962 by delivering them to their attorneys of record. No order had been made by the court at any time extending the fifteen days prescribed by section 2030, when it declares: '(T)he party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within 15 days after the service of the interrogatories, unless the court, on moton and notice and for good cause shown, enlarges the time. * * *' Three years, we note, is considerably more than fifteen days.

We are quite aware that the provision of section 2030, subdivision (d), authorizes the orders to dismiss and strike only if the failure to answer the interrogatories is wilful. We do not agree with appellants' basic premise, that the burden rests upon the propounder of the interrogatories to proceed to prove wilfulness. If that were the requirement, then the moving party would have a limitless number of questions to answer, for there are an infinite number of Possible reasons why one may not have answered, most of them dependent upon facts not at all within the ken of one's opponent. When three years after interrogatories are propounded they reman unanswered, and a motion is made to dismiss, the reason for the failure must come from the one who has remained dumb when under a duty to talk. If the reason is 'I did not want to expose my hand,' it leaves his failure wilful. If the excuse is 'my attorney may have known about these questions, but he never told me' we doubt if that excuse is good, unless the failure of the attorney to do his duty was not wilful. Certainly the law is not to be thwarted by excusing the client for the wilful failure of his attorney.

Now let us look at plaintiffs' defense against defendant's motion. We note, first of all, that they have forgotten that there are two plaintiffs, the husband and wife. The wife seeks a one hundred thousand dollar judgment against the defendant. As she had a right to do, the...