Weinkauf v. Superior Court of Tuolumne County

TOBRINER, J. Petitioner seeks a writ of prohibition to restrain the Superior Court of Tuolumne County from enforcing an order directing him to reimburse the real parties in interest in the amount of $500 for attorney’s fees and expenses incurred in pursuit of discovery proceedings against petitioner’s client. Since section 2034, subdivision (d), of the Code of Civil Procedure authorizes such an order,and since we find no abuse of the trial court’s discretion in rendering it, petitioner’s sought writ should not issue.

The present controversy arose out of a personal injury damage action in which petitioner served as attorney for the defendant. Plaintiffs and their attorneys, the real parties in interest in the present case, filed and served interrogatories upon defendant and his attorney. Plaintiffs received no reply to these interrogatories or to the letters which they directed to .petitioner for a period of nearly five months. Plaintiffs then moved under Code of Civil Procedure, section 2034, subdivision (d), for orders striking defendant’s answer, entering judgment by default and directing defendant or his att[664]orney to reimburse them for their “reasonable expenses in making this Motion and reasonable attorney's fees for same. ’ ’ After a duly noticed hearing on the motion the trial court declined to strike the answer or enter a default but did require defendant to answer the interrogatories. The court likewise ordered petitioner to pay $500 “as attorney’s fees and expenses. ’ ’ Petitioner claims that the trial court lacked the authority to issue this order.

Subdivision (d) of the Code of Civil Procedure section 2034 provides in part: “[I]f a party or an officer or managing agent of a party willfully fails to serve answers to interrogatories submitted under Section 2030 of this code, after proper service of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party or impose such other penalties of a lesser nature as the court may deem just, and may order that party or his attorney to pay to the moving party the reasonable expenses in making such motion, including reasonable attorney ⅛ fees. ’ ’

Despite the mandate of the statute, petitioner contends that the trial court lacked jurisdiction to enter the order against him. In reaching this result he appears to rely on the three points which we discuss seriatim.