Cohen v. Superior Court

Opinion

DUNN, J.

This is a petition for a writ of mandate asking us to. direct the trial court (Los Angeles County Superior Court) to set aside its order.

Petitioner Cohen is a defendant in a personal injury action filed by the real party in interest (plaintiff) whose complaint alleged that Cohen’s codefendant struck plaintiff in a car, after codefendant had consumed liquor in petitioner’s bar, “The Tender Trap Cocktail Lounge.” We issued an order temporarily staying trial of this case then set for September 29, 1976, placing oral argument on our November 9 calendar and ordered that a return (Code Civ. Proc., §§ 1089, 1105, 1108) be filed by October 26. Because of a showing made by R.P.I. (plaintiff) we advanced oral argument to our October 13 calendar and, at oral

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argument R.P.I.’s counsel stated that he intended his various memoranda be considered by us as his “return” to the petition for a writ. We have so considered them.

R.P.I. served Cohen’s attorney with a request for admissions. Defendant apparently intended to make a denial of requests for admissions Nos. 2-35, but denied the same on information and belief. R.P.I. moved the trial court for an order under Code of Civil Procedure, section 2034, subdivision (a), that the facts be deemed admitted and for attorneys’ fees. Petitioner, in opposition, filed a declaration showing that petitioner’s counsel was ignorant of Los Angeles Superior Court Discovery Procedure Manual, 271 D1 and 271 D2

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and asked the court for permission to amend Cohen’s answers to plaintiff’s request for admissions by admitting requested admissions Nos. 2, 3, 6, 10, 11, 12, 18, 27 and 31 and by denying Nos. 21, 22, 23, 24, 29 and 35.

The trial court granted R.P.I.’s motion and stated to defense counsel that , the proper procedure would be for a motion to be filed under Code of Civil Procedure, section 473. Petitioner filed such a motion, but it was denied. Hence, this petition.

Code of Civil Procedure, section 2034, subdivision (a), states in part, that: “Upon the refusal ... of a party to admit or deny . . . the truth of any matters of fact. . . the party serving such request may . . . make [an] application for an order requiring further answers to such request or, in the alternative, for an order that the . . . truth of said matters of fact be deemed admitted for the purpose of the action. ... If the motion is granted and if the court