Fred Howland Co. v. Superior Court of Los Angeles County

• Citation: 244 Cal.App.2d 605,53 Cal.Rptr. 341
• Court: California Court of Appeals Court of Appeals
• Decision Date: 02 September 1966
• Parties: FRED HOWLAND COMPANY, Inc., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Ross HILL, Real Party in Interest. Civ. 30651.

Page 341

53 Cal.Rptr. 341

244 Cal.App.2d 605

FRED HOWLAND COMPANY, Inc., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Ross HILL, Real Party in Interest.

Civ. 30651.

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

Sept. 2, 1966.

Rehearing Denied Sept. 27, 1966.

Hearing Denied Oct. 26, 1966.

Crider, Tilson & Ruppe and Robert D. Walker, Los Angeles, for petitioner.

No appearance for respondent.

Irving H. Green and Eliot B. Feldman, Los Angeles, for real party in interest.

FILES, Presiding Justice.

This proceeding arises out of an action to recover damages in the amount of $200,000 for personal injuries. Petitioner here was one of the defendants named in the damage action. On March 25, 1966, the court granted plaintiff's motion to strike said defendant's answer and thereafter entered its default for failure to answer interrogatories, and in addition, ordered that it pay $250 to plaintiff's attorney as a fee. On May 5 the court refused to reconsider its prior order. On May 27 this proceeding was commenced for a review of those orders.

Inasmuch as the question presented here involves the exercise of discretion by the respondent court, the pertinent facts are those which were before that court when it acted. Petitioner has supplied those facts by incorporating in its petition, as exhibits, photographic reproductions of all of the documents in the superior court file. The return filed by the real party in interest (plaintiff in the injury action) denies any information or belief sufficient to answer the allegation of the petition that the copy of the superior court file has been attached. This denial is sham and will be disregarded. (State Ath. Com. v. Massachusetts Bonding etc. Co., 46 Cal.App.2d 823, 828, 117 P.2d 75.) There are some other denials in the return and the replication, but they appear to reflect a disagreement over conclusions. With the superior court file before us as a part of the petition, this proceeding may be determined on the pleadings.

On July 13, 1964, Ross Hill commenced in the southwest district of the superior court his action for $200,000 damages against Fred Howland Company, Inc., a corporation, and Morley Construction Company, a corporation, and others identified by fictitious names. The alleged injury had occurred July 15, 1963, while Hill was working as a pipefitter, employed by J. Carner Company, a subcontractor in the construction of a large building. Howland was the project manager, Morley was a contractor also engaged in the project, and The Kratter Corporation, later served as Doe I, was the owner of the premises. The insurance carrier for J. Carner Company, which had paid workmen's compensation benefits to Hill amounting to $23,995.68, filed a claim of lien in this amount.

On August 11 an answer was filed on behalf of Morley, through the law firm of Dryden, Harrington, Horgan & Swartz. On August 14 the Dryden office answered on behalf of Howland. Each answer denied that the answering defendant was negligent and pleaded as affirmative defenses the plaintiff's contributory negligence, plaintiff's assumption of risk and, as a pro tanto defense against the lien claimant, that plaintiff's employer had been contributorily negligent.

On May 11, 1965, Hill's attorneys served a single set of interrogatories to be answered by Howland, Morley and Kratter. Kratter, appearing through attorneys Schell & Delamer, filed its answers to interrogatories on June 16, 1955. The Dryden office filed answers for Morley on July 15, 1965.

Howland's time to answer interrogatories was extended to June 26, July 30, September 29, October 14 and October 28, 1965. In the process of gathering information the Dryden office concluded there was a possibility of a conflict of interest between its two clients, and because of this, on November 23, 1965, the firm of Crider, Tilson & Ruppe was substituted in place of the Dryden firm as attorneys of record for Howland. ¹

On January 14, 1966, the attorneys for Hill served and filed notice of a motion to be made on January 28, 1966, to strike the answer of Howland for its failure to answer interrogatories. On January 28 there was no appearance and the motion went off calendar. Counsel had consented to a postponement, but had neglected to tell the court. The motion was rest for February 25 and then continued to March 25. On March 24 Howland's attorneys filed partial answers to the interrogatories. With respect to questions not answered, the document used the notation 'Awaiting information.'

The interrogatories which were unanswered related to the following subjects: The details of insurance coverage, including any controversies over coverage; description and location of any accident reports; names and addresses of witnesses and existence and contents of any oral statements made by such persons; existence and location of photographs; detailed statement of facts on which pleadings are based; information about any experts who have been consulted; names, addresses and other information about employers, employees, subcontractors, and the agreements with each; complaints received, opinions held, and instructions given regarding cleanup, maintenance and job safety.

The interrogatories with respect to insurance coverage could not have been answered properly without some legal analysis of the relationships among the various entities who were involved in this construction project, as well as an examination of the policies.

The other unanswered interrogatories called for information which could only be given after a search of detailed records, most of which had been prepared for other purposes, and would not ordinarily be readily available after the construction job had been completed. At least some of these interrogatories could not have been answered without also consulting a number of persons who were with the company at the time of the accident, but who were not necessarily there two years later.

The partial answers were accompanied by a declaration of attorney Marshall T. Hunt, a member of the Crider firm, which stated that at the time the notice of motion was served his office had not received a copy of the interrogatories. Immediately thereafter, on January 18, 1966, a copy was received from the Dryden office. The declaration further explained that the questions must be answered by Mr. W. Robert Little, Vice President of Howland, who resides in Miami, Florida, and that the Miami attorneys for Howland had advised that Mr. Little would be in Los Angeles on March 24 or 28.

On March 25, 1966, the motion was argued, and the court made the following order:

'MOTION IS GRANTED. Defendant, Fred Howland, Inc. is ordered to pay to the plaintiff's attorney fees of $250.00.'

The attorneys for Hill then filed a request for entry of default, and on April 20, 1966, the default of Howland was entered.

On April 8, 1966, Howland's attorneys filed a notice of motion for reconsideration of the ruling and for leave to file answers to interrogatories. The notice was accompanied by complete answers ² to the interrogatories verified by W. Robert Little, and by a declaration of Marshall T. Hunt, which stated in substance as follows:

The Crider firm had been substituted into the case because in the process of the discovery proceedings a possible conflict of interest had been recognized. They received the interrogatories on January 18, 1966, and did not even have an investigation file on the case. Howland was a Florida corporation with its office in Miami. The applicable books and records were in storage in a warehouse in Miami, in boxes that were not indexed. Mr. Hunt had explained this problem to the attorneys for Hill and requested time, but they had refused to consent to any extension beyond March 25. Mr. Little arrived from Miami on March 28 (as the earlier declaration had promised) and arrangements were made with him for immediate removal of records from storage. Upon Mr. Little's return to Miami the necessary records were brought to Los Angeles so that answers could be prepared. The declaration further averred that, upon the basis of the information thus developed, counsel was of the opinion that Fred Howland Company, Inc. had a meritorious defense to the action.

The attorney for Hill filed a declaration in opposition to the motion but it neither contradicted any of the matters stated in the Hunt declaration nor added any new information.

The motion was heard on April 22, and denied by the respondent court on May 5, 1966.

In making its order of March 25, 1966, the respondent court was acting under that portion of Code of Civil Procedure section 2034, subdivision (d), which reads:

'* * * if a party or an officer or managing agent of a party willfully fails to serve and file answers to interrogatories submitted under Section 2030 of this code, after proper service of such interrogatories, ...