CORNWALL v. SANTA MONICA DAIRY COMPANY (1977)

A complaint for personal injuries was filed 31 Oct. 72. Santa Monica Dairy Company, dba ‘Edgemar Farms,’ filed its answer to the complaint on 23 May 73. On 20 Aug. 74 defendant filed interrogatories to plaintiff Cornwall,¹ having mailed them to Cornwall's attorney on 16 Aug. 74. On 1 Oct. 75, defendant moved for an order to compel answers to its interrogatories or for a dismissal. The motion was heard 20 Oct. 75. 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 Dec. 75, defendant filed a motion to dismiss Cornwall's action. The motion was heard on 15 Jan. 76 and was granted, the court again finding that Cornwall acted wilfully.

This is an appeal by Cornwall from the order (‘judgment,’ Code Civ.Proc. s 581d) dismissing his cause of action because of his failure to respond to the interrogatories served on him. (Code Civ.Proc. s 2034, subd.(d).)² The order (judgment) is appealable. (Code Civ.Proc. s 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 ss 500, 605) of non-wilfulness is on plaintiff. We agree. (Frates v. Treder, 249 Cal.App.2d 199, 204, 57 Cal.Rptr. 383 (1967).)

Plaintiff filed the declaration of his attorney which states, in essence, the 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.

Plaintiff argues that the interrogatories were not sent to him, personally, so that it cannot be said that he acted wilfully in not answering them. We disagree with plaintiff. If a plaintiff wishes to avail himself of the California courts, he owes a duty to comply with its rules, such as the rules of discovery. To hold otherwise, would permit a litigant to disappear and not be obliged to comply with our discovery statutes. The failure to respond to his attorney's letter may not have been wilful but a failure to keep his attorney posted on his whereabouts may, under the circumstances, be deemed ‘wilful.’ There is nothing in plaintiff's attorney's declaration which sheds any light on the point and, for all that defendant knew, plaintiff may have been deceased. While in the Frates, 249 Cal.App.2d, 57 Cal.Rptr. 383 case, the court emphasized that three years and passed between the service of interrogatories on plaintiff's counsel and the order of dismissal, we think that such passage of time is not here decisive.

The order (judgment) is affirmed.

FOOTNOTES

1.  Although defendant's request to the clerk for additional papers to appear in the clerk's transcript included a request for interrogatories sent to Cornwall, the clerk's transcript furnished to us contained only interrogatories to his co-plaintiff, Des Rosier, for which reason we sent for and examined the court file pursuant to Rule 12, subd. (a), Cal.Rules of Court.

2.  Code Civ.Proc. s 2034, subd. (d) reads in part: ‘If a party . . . for whose immediate benefit the action or proceeding is prosecuted or defended . . . willfully fails to serve answers to interrogatories . . . the court on motion and notice may . . . dismiss the action or proceeding or any part thereof . . . and may order that party or his attorney to pay to the moving party the reasonable expenses in making such motion, including reasonable attorney's fees.’

DUNN, Associate Justice.

KINGSLEY, Acting P. J., and JEFFERSON, J., concur.