O'BRIEN v. Superior Court

[390]

SIMS, J.

This matter is before the court upon a petition for writ of prohibition in which petitioner seeks relief from an order of respondent court granting the motion of the real party in interest to compel petitioner to give further answers to certain interrogatories. An alternative writ of prohibition issued but no return was made thereto by the real party in interest or anyone else, and the only appearance at the hearing was on behalf of petitioner.

The facts reflect that this matter arises out of an action filed by Benny Troedel, the real party in interest, to recover damages for personal injuries allegedly incurred in a three-vehicle accident, in which petitioner and others are named as defendants. On September 17, 1964, plaintiff mailed interrogatories directed to petitioner to the latter’s attorney pursuant to the provisions of section 2030 of the Code of Civil Procedure. The original interrogatories were filed with the court on September 21, 1964. On October 8, 1964, petitioner’s answers to the foregoing interrogatories were mailed to plaintiff, and the originals thereof were filed with the court on October 9, 1964.

1

On October 27, 1964, more than 15 days after service of the answers, the plaintiff mailed his notice of motion and motion to compel further answers to interrogatories. This instrument which failed to fix a date of hearing was filed with respondent court on October 28, 1964. Thereafter, on October 29 plaintiff mailed, and filed the following day, an amended instrument setting the motion for hearing on November 6, 1964. At that time petitioner, among other objections, raised the provisions of section 2030 of the Code of Civil Procedure reading as follows: “If the party who has submitted the interrogatories deems that further response is required, he may move the court for an order requiring further response. Such motion must be upon notice given within fifteen (15) days

[391]

from date of service of the answers or objections. Otherwise, the party submitting the interrogatories shall be deemed to have waived the right to compel answer pursuant to this section.” Despite the fact that no showing to justify or show good cause for failure to comply with the foregoing provisions was produced by real party in interest, the respondent court overruled petitioner’s objections and made the order which he seeks to have vacated.