Hauk v. Superior Court

SCHAUER, J.

In this proceeding we issued an alternative writ of mandamus for the purpose of reviewing an order of respondent court in which it refused to compel the real parties in interest (hereinafter referred to as defendants) to answer certain questions propounded at their depositions on oral interrogatories.

The unanswered questions relate to defendants’ gains and profits from certain business transactions, and the issue is whether it is within the discretion of the trial court to postpone compelling defendants to answer such questions until plaintiff has first established his right to an accounting. For the reasons hereinafter discussed, we have concluded that plaintiff is entitled to have the questions answered without first establishing his right to the accounting.

In the underlying action, plaintiff seeks an accounting from defendant. DeMott of the latter’s gains and profits derived from the promotion of a project known as the Pomona Valley Colleges Industrial Park Center. Plaintiff alleges that in consideration of services rendered in connection with and assisting in the promotion of the project, defendant DeMott had orally promised to pay plaintiff one-half of all gains and profits which DeMott expected to receive therefrom.

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DeMott allegedly has received such profits, but has

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refused to disclose to plaintiff any information on them. Therefore, plaintiff brought the present action, and pursuant to notice, took the depositions of DeMott and Burgess, who answered certain questions but refused to answer others. Upon application for an order directing defendants to answer the subject questions, the trial court ordered several questions answered, but refused to require answers to the questions pertaining to gains and profits from the project. Although defendants had sought a protective order under subdivision (b) of section 2019 of the Code of Civil Procedure

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alleging that plaintiff’s questions would subject them to “annoyance, embarrassment, or oppression,” the court did prohibit the questions being answered, but did not base its decision on section 2019, subdivision (b). The sole basis for the court’s decision appears to be the conclusion that it is within the discretion of the trial court in the interests of orderly judicial administration to require that plaintiff first establish his right to an accounting before defendants are