DeMayo v. Superior Court

California Court of Appeal Feb 23, 1961 No. Civ. 25159Published

Before: Nourse

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Holding. The court held that the petitioner is entitled to a writ of mandate compelling the real party in interest to answer specific interrogatories regarding his partnership income and assets, as these matters are relevant to his ability to pay child support. The court determined that discovery of nonprivileged, relevant information is a matter of right, leaving no room for trial court discretion to deny it.

Issues

Whether interrogatories regarding a party's partnership income and assets are relevant to the issue of his ability to pay increased child support.
Whether a party is entitled to a writ of mandate to compel discovery when the trial court improperly denies access to relevant, nonprivileged information.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“The interrogatories were therefore pertinent as to the issue of the ability of the real party in interest to pay, and therefore not only relevant to the subject matter of the proceedings, but to the actual issues before the respondent court.”

“there is no room for the exercise of discretion, for the party seeking to discover is entitled to it as a matter of right.”

“Petitioner has been denied that right and as she has no remedy by appeal, she is entitled to enforce her right to discovery through mandate.”

[393]

NOURSE, J. pro tem.

Petitioner here is the plaintiff and moving party in a proceeding pending in the respondent court wherein petitioner seeks to have modified an order theretofore made by the respondent court, requiring the real party in interest here to pay a certain amount monthly for the minor petitioner’s support, by increasing the amount of that payment. In preparing for the hearing in the proceeding in the respondent court, petitioner, pursuant to section 2016 of the Code of Civil Procedure, took the deposition of the real party in interest. Upon the taking of the deposition, the real party in interest refused to answer certain questions propounded to him. Petitioner then, pursuant to section 2034, subdivision (a), of the Code of Civil Procedure, sought an order compelling answers to the interrogatories in question. Upon the hearing of the motion for that order, the respondent court ordered the real party in interest to answer certain of the interrogatories, but declined to order him to answer the balance thereof. Petitioner then filed her petition here, and we issued an alternative writ of mandate requiring respondent court to vacate its order as to six of the interrogatories set forth in the petition, but denied said petition as to the balance of said interrogatories, it appearing to us that those interrogatories had no possible relevancy to the subject matter of the proceeding.

The issues before the respondent court in the proceeding, in relation to which the deposition was taken, were: the need of the minor petitioner for financial aid from the real party in interest beyond that which he was required to make by the existing order of the court, and the ability of the real party in interest to pay an additional amount.

The six interrogatories to which the alternative writ is addressed are as follows: “2. What was the partnership net income for the year 1959 ? 9. What was your net law income of your law partnership for the year 1959, the gross income ? 11. Do you have any interest in any partnership accounts, if any? 14. What was the partnership’s net income in 1957? 16. Is there a partnership agreement? 17. Are your rights in the partnership assets governed by any written agreement ? ’ ’

Section 2016, subdivision (b), of the Code of Civil Procedure provides in part as follows: “. . . the deponent may be examined regarding any matter, not privileged, which is

DeMayo v. Superior Court

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