Cornwall v. Santa Monica Dairy Co.

Opinion

DUNN, J.

A complaint for personal injuries was filed 31 October 1972. Santa Monica Dairy Company, dba “Edgemar Farms,” filed its answer to the complaint on 23 May 1973. On 20 August 1974 defendant filed interrogatories to plaintiff Cornwall,

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having mailed them to Cornwall’s attorney on 16 August 1974. On 1 October 1975, defendant moved for an order to compel answers to its interrogatories or for a dismissal. The motion was heard 20 October 1975. The court ordered that plaintiff answer the interrogatories within 30 days and found that Cornwall’s failure to file same had been wilful, ordering Cornwall to pay $200 to the moving defendant for attorneys’ fees, within such 30-day period. No answers were filed and, on 16 December 1975, defendant filed a motion to dismiss Cornwall’s action. The motion was heard on 15 Januaiy 1976 and was granted, the court again finding that Cornwall acted wilfully.

This is an appeal by Cornwall from the order (“judgment,” Code Civ. Proc., § 58Id) dismissing his cause of action because of his failure to respond to the interrogatories served on him. (Code Civ. Proc., § 2034, subd. (d).)

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The order (judgment) is appealable. (Code Civ. Proc., § 904.1.)

Plaintiff contends the burden of proving abuse of the trial court’s discretion has been met in that there was no showing that Cornwall acted wilfully. Defendant contends the burden of proof (Evid. Code, §§ 500,

[253]

605) of nonwilfulness is on plaintiff. We agree.

(Frates

v.

Treder

(1967) 249 Cal.App.2d 199, 204 [57 Cal.Rptr. 383].)

Plaintiff filed the declaration of his attorney which states, in essence, that plaintiff, a Canadian, is now a resident of Hawaii and although his attorney wrote to him there the letter was returned to the attorney unclaimed. Thereafter, the attorney attempted, without success, by various means, to communicate with Cornwall.