Hagan v. Superior Court

PETERS, J. This is a proceeding in mandamus, by petitioner Evert L. Hagan, to compel the real party in interest, Mary H. Lamb, to answer certain questions asked her on a deposition after the trial court had denied relief. The case comes to us after the second denial by the District Court of Appeal of the application. This court granted a hearing, and issued an alternative writ. The return to that writ, filed by the real party in interest, calls attention to certain facts which, it is urged, demonstrate that the District Court of Appeal acted well within its discretion in denying the second application. We agree with this contention.

The facts are as follows: In 1955, Hagan, acting for himself and as agent for one Mangus, purchased certain mining claims from Mr. and Mrs. Lamb. Hagan, claiming fraud, brought an [769]action against the Lambs in the Los Angeles Municipal Court, and recovered default judgments against both of them. Mrs. Lamb then instituted an action in the Los Angeles Superior Court to have the default judgment as against her set aside. In that action she is apparently contending that she was not validly served, that she was unaware of the suit, and that she is not legally responsible for the fraud of her husband.

In Mrs. Lamb’s action Hagan took her deposition. She was asked a series of questions by which, in general, Hagan hoped to prove that Mrs. Lamb was, in fact, a business partner of Mr. Lamb, and that she had actual knowledge of Hagan’s action against her and her husband before their defaults were taken. Mrs. Lamb, after objections by her counsel and upon his advice, refused to answer many of these questions. Hagan moved, in the trial court, to compel answers to these questions. The motion was denied, and Hagan petitioned the District Court of Appeal for a writ of mandate. This petition, according to the return, was denied, without opinion, on September 21, 1961. No further action was taken in the trial court, no petition for hearing was filed in this court, nor was any other procedure instituted to test that ruling. Thus this denial by the appellate court became final. Thereafter, on November 10,1961, some 50 days after the first petition had been denied, petitioner filed in the appellate court a second petition identical with the one which had been denied on September 21, 1961. This second petition sought review by mandate of the same order of denial involved in the first petition. This second petition was denied, without opinion, on November 16, 1961. The petition for hearing was then filed with this court. It can be and is argued by Mrs. Lamb that the filing of this second identical application for the writ was an abuse of the writ of mandate, and that such abuse constituted a valid ground for the denial of the writ by the District Court of Appeal. With this contention we agree.