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Cembrook v. Superior Court in and for City and County of San Francisco

California Court of Appeals, First District, First Division
Feb 23, 1961
11 Cal. Rptr. 225 (Cal. Ct. App. 1961)

Opinion

Hearing Granted April 19, 1961.

Opinion vacated 15 Cal.Rptr. 127.

Allen Spivock, San Francisco, for petitioner.


Sedgwick, Detert, Moran & Arnold, San Francisco, for Sterling Drug, Inc.

TOBRINER, Justice.

Petitioner seeks mandate to compel response to lengthy requests for admissions from Sterling Drug, Inc., real party in interest (hereinafter referred to as defendant), pursuant to discovery procedures incorporated in Code of Civil Procedure, § 2033. As we point out infra in more detail, the advantage of expendition, which the procedure contemplated, could be lost in the complexity of diffuse and unanswerable questions. We therefore cull the questions to sanction those that call for direct and simple answers.

The requests emanate from a suit alleging fraudulent mistrepresentations as to defendant's product, Bayer Aspirin. The complaint framed two causes of action, one in warranty and the other in fraud. Petitioner by stipulation struck the first count. The second count alleged that defendant 'falsely represented in widespread advertising that use of its 'Bayer Aspirin' for 'headaches, common colds,' etc. was harmless and safe,' but that defendant knew that its 'aspirin contains an acidic substance which could and did cause chemical destruction of the tissues of * * * [petitioner's] gastrointestinal tract and may necessitate surgical removal of his stomach.' Petitioner regularly from 'about 1934' took 'about six or eight tablets every other day believing said defendant's advertisements and package directions that they were 'safe' * * *.' Petitioner continued that practice Petitioner further alleges that after examination of the advertisements and inserts he has discovered that the advertisements 'prior to the year of 1952, did not mention or make any reference to 'seeing a doctor if pain persists' after taking same.' He alleges that prior to the year of 1954 inserts in each package of the product 'did not mention or make any reference to 'seeing your doctor if pain persists' after taking same.'

Petitioner submitted to defendant the requests for admissions; defendant objected to all of them. The court sustained the objections to the requests upon the apparent basis that, in the language of the section, they were 'improper.' After hearing a motion to set aside the ruling, the court denied the motion. Petitioner contends that the court abused its discretion in so doing and that section 2033 of the Code of Civil Procedure requires responses to the submitted questions.

The commentators have described the general purposes of the section. As observed by Witkin, California Evidence, section 536, page 586, 'C.C.P. 2033(a), based on Fed. Rule 36, provides that a party may serve of the adverse party 'a written request for the admission by the latter of the genuineness of any relevant documents described in the request or of the truth of any relevant matters of fact set forth in the request.'' When served with such a request the party may meet it by either a 'sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters'; or alternatively by 'written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part * * *.' Code of Civil Procedure, § 2033. In substance, 'Section 2033, like its counterpart Federal Rule 36, contains closely knit provisions calculated to compel admissions as to all things that cannot reasonably be controverted.' (Louisell, 'Discovery Today,' 45 Cal.L.Rev. (1957), pp. 486, 505.)

DeMeo, California Deposition and Discovery Practice, (second edition), section 12.07, page 292, points out that '* * * there are no California cases construing section 2033, based on Rule 36,' and we must therefore rely principally upon federal cases for guidance. One of these, In re Reinauer Oil Transport, Inc., D.C.Mass. 1956, 19 F.R.D 5, defines the basic nature of the procedure in this language: 'Requests under * * * Rule 36, 28 U.S.C.A., should be used to obtain admission of facts about which there is no real dispute. They should deal with singular relevant facts which can be clearly admitted or denied and not with complicated situations involving many distinct and vital controversial issues of facts. They should not be used as a means of covering the entire case and every item of evidence.' At page 5.

We think that, if we are to derive the full benefit of section 2033, the courts should not impose upon it a restrictive construction. For example, we do not think that a properly framed and readily answerable request should be held to be objectionable solely because it relates to matters that might 'reasonably be controverted' (Louisell, supra), or is addressed to facts about which there may be 'real dispute' (In re Reinauer, supra). The admissions are only for the purposes of the single case in issue; they are not to be used against the defendant elsewhere (Code of Civil Procedure, § 2033(b)). Consequently the plaintiff may properly ask for an admission of a fact as to which there appears on the face of the pleadings, to be a 'real dispute.' Requests for admissions can be the most useful and effective of all the new discovery procedures, and the sooner they are employed within their valid and fair scope, the more useful the procedure will be.

There is a clear line between the simple, direct question, that can be readily answered by an admission or a denial, and an unanswerable As a general proposition, then, the requests should be direct and simple and not weighted by coloring adjectives which defeat direct and simple answers. Turning, again, to the Federal precedents, they hold that the requests should be confined to facts which can be clearly admitted (see In re Reinauer Oil Transport, Inc., supra, 19 F.R.D. 5), and that are not complex (see Benton v. McCarthy, D.C.S.D.N.Y.1959, 23 F.R.D. 235; Waider v. Chicago, R. I. & P. R. Co., D.C.S.C.Iowa 1950, 10 F.R.D. 376). Such requests should not call for answers which must be 'couched with many qualifications and limitations.' Knowlton v. Atchison, T. & S. F. Ry. Co., D.C.W.D.Mo.1951, 11 F.R.D. 62, 66.

The purpose of the new procedures for discovery is, of course, the expedition of litigation, not the exploitation by one party of the other by forcing answers to questions not reasonably simple and relevant. If the procedure is to be subverted into the interjection of complex and sweeping compilations of unanswerable questions, the objective of the Legislature will be thwarted. More time will be consumed in unraveling the knots of the inquiries than will be saved by avoiding the proof of facts not controverted.

We have analyzed the requests presented here and we group them in appropriate categories, finding those proper which call for an admission of a clear and simple fact and those improper which are couched in imprecise language, call for conclusion and opinion, pose compound questions, seek admission of facts which constitute the ultimate issue, assume disputed facts, or call for answers which clearly lie beyond the actual knowledge of the questioned party or the reasonably ascertainable knowledge of such party.

I. Request for admission of clear and simple fact.

The requests listed below fulfill the mandate of Knowlton v. Atchison, T. & S. F. Ry. Co., supra, 11 F.R.D. 62: 'Requests made under said rule should be simple and direct, so that they may be categorically admitted or denied, without too many qualifications, or limitations, or require modifying facts to be stated. If they are not so framed, then effective use of said rule is frustrated.' At page 66. Pursuant to this standard, defendant should be required to answer the following questions:

'1. The advertisements of 'Bayer Aspirin' tablets in national magazines and local dailies prior to the year of 1952 did not mention or make any reference to 'seeing a doctor if pain persists' after use of same.

' (a) If incorrect, kindly give the year when said ads first so stated.

* * *

* * *

'2. The inserts of said defendant in containers of said Bayer Aspirin tablets prior to the year of 1954 did not mention or make any reference to 'seeing your doctor if pain persists.'

' (a) If incorrect, kindly give the year when said inserts first so stated.'

* * *

* * *

' [c] (2) That defendant stated in its ads frequently that it was 'safe' to take said Bayer Aspirin.

* * *

* * *

'4. When said ads in 1952 and said inserts in 1954, or such year as defendant admits, commenced to say: 'See your doctor if pain persists', defendant did not therein call to the attention of plaintiff and others that this applied also to frequent 'headaches' and/or 'colds.'

' (a) When said ads and inserts urged the 'seeing of a doctor (physician) if pain persists', they added: 'This is particularly true of continuing severe pains * * *

* * *

'7. It was only in the year of 1955 and thereafter that defendant's said ads mentioned that Bayer Aspirin could be taken 'without stomach upset.'

* * *

* * *

'8. Said ads started to mention that Bayer Aspirin 'dissolves instantly' or 'faster' in about 1950.

' (a) If incorrect, kindly give the year when said ads first so stated.'

II. The language of the request is not precise, calls for conclusion and opinion, poses a compound question, or seeks the admission of facts which constitute the ultimate issue.

The following questions are subject to one or more of the vices set out in the heading. We note the recurrent use of the vague and ambiguous term 'irritation of the human stomach,' which extends from a multitude of ills to a minimal indisposition:

' (b) Prior to the time said reference to 'seeing a doctor if pain persists' appeared in said ads, said defendant knew that said Bayer Aspirin tablets when taken regularly, and according to its directions, during a period of over one year could cause irritation of the human stomach.

' (c) Prior to said time of said reference appearing in said ads, defendant knew that plaintiff and others who took said Bayer Aspirin regularly, and according to directions, during a period of over one year for the relief of colds and/or headaches could obtain therefrom an irritation of their stomach.

* * *

* * *

' (b) Prior to the time of said reference defendant knew that said Bayer Aspirin when taken regularly and according to its directions, during a period of over one year could cause irritation of the human stomach.

'3. That prior to said time that said ads and inserts made reference to 'seeing a doctor if pain persists', said defendant well knew that said Bayer Aspirin tablets contained five (5) grains of acetysalicylic [sic] acid which could irritate the human stomach when said tablets are taken regularly and according to its directions for a period of over one year.

' (a) That defendant's research and other information available made it fully aware of the above before said reference to 'seeing a doctor.'

' (b) That defendant's research and other information available made it fully aware before said reference that said prolonged use of said Bayer Aspirin could cause an irritation of the human stomach which could result in an irreversible change thereof and lead to a gastric ulcer and eventually, could lead to a gastric carcinoma.

* * *

* * *

'5. During the time when said defendant was putting out said ads and inserts from 1934 to 1956 inclusive, it well knew that at least a million persons in the United States of America were allergic to said Bayer Aspirin tablets or any aspirin and that they would be harmed by using same over a prolonged period of time.

' (a) That during said time defendant well knew that all persons using its widely advertised Aspirin were not 'normal' persons.

' (b) That during said time defendant made no effort in said ads or inserts to warn plaintiff and/or others that prolonged use of Bayer Aspirin could cause irritation of the stomach.

'6. It is not only the cheaper aspirin tablets which cause stomach irritation but such irritation may result to many persons from prolonged use of Bayer Aspirin tablets.

* * *

* * *

' (a) Defendant began to mention this because its aspirin competitors such as 'Bufferin' had started to warn the public that aspirin contains an acid which can cause stomach upset. ' (b) Defendant did nothing up to 1956 to counteract the danger of irritation of the human stomach from the acid in its Bayer Aspirin and thus protect the public, including the plaintiff.

' [b] (1) Defendant has done nothing since 1956 to counteract said acid's effect on the human stomach from use of its Bayer Aspirin.

* * *

* * *

' (b) Defendant's reason for mentioning that its Aspirin 'dissolved instantly' or 'faster' was because it then knew or believed that the large, undissolved particles of aspirin on the mucous lining of the human stomach could cause stomach irritation.

' [b] (1) If not so, give your reason for so doing.'

III. The request assumes the pre-existence of a disputed fact.

To assume and assert, as part of the question, a fact in dispute is to make it impossible for the questioned party to render an intelligible answer. The following questions do so:

' (d) That prior to the above time, and with knowledge of the above, defendant did nothing to warn plaintiff or others that said irritation of the stomach could result from taking said Bayer Aspirin regularly for colds and/or headaches during a period of over one year.'

* * *

* * *

' (c) That with all of the above information in its possession, defendant did nothing to warn plaintiff and others that its Bayer Aspirin should not be taken over prolonged periods without seeing a doctor.

' [c] (1) That with said information, defendant did nothing to warn plaintiff and others that said Aspirin could cause serious stomach upset when taken over prolonged periods.

* * *

* * *

' (c) Altho defendant possessed the above information it made no effort to so inform the users of its Bayer Aspirin but deliberately concealed said information from said users, including the plaintiff.

* * *

* * *

'9. That defendant with all of the above information has done nothing to date to warn the public, including plaintiff, of the danger of stomach irritation from prolonged use of its Bayer Aspirin.'

IV. Request for admission of facts not within the defendant's knowledge.

The requests hereinafter listed ask for admissions as to facts exclusively within the knowledge of the questioning rather than the questioned party. As such they conflict with the ruling in J. R. Prewitt & Sons, Inc. v. Willimon, 1957, 20 F.R.D. 149: 'A party should not be required to admit the truth of facts which are exclusively within the knowledge of the party serving the request. The ascertainment of the truth or falsity of the facts sought to be admitted is not reasonably within the power of the plaintiff. Even if plaintiff could determine the existence of the facts, the request further demands that plaintiff conclude as to the legal efficacy of those facts relative to both defendants. A request of that kind is improper.' At page 151.

' [c] (3) That defendant stated in its ads frequently and purposely gave to the public, including plaintiff, the impression that it was 'safe' to take said Bayer Aspirin without seeing a doctor or physician.

* * *

* * *

' [a] (1) Plaintiff used said Bayer Aspirin tablets regularly, according to its directions, for the relief of headaches and colds and did not use same for any of the above enumerated ailments.

' [a] (2) Said ads after 1952 and said inserts after 1954 did not make it clear to plaintiff and others that they must see a doctor if pain persists in connection with use of said Bayer Aspirin tablets solely for relief of their 'headaches' and 'colds.'

' [a] (3) Plaintiff took said Bayer Aspirin tablets regularly as set forth above for 'colds' and 'headaches' in the firm belief * * *

* * *

' (d) A competitor of defendant, known as 'Bufferin' has advertised widely that 'Bufferin' dissolves 'twice as fast as aspirin' for the reason that this would prevent stomach irritation and stomach upset.

' (e) Said 'Bufferin' also has advertised widely that 'Bufferin' contains 'Dialmanate' to counteract the acid in aspirin which causes stomach upset.

* * *

* * *

'10. Plaintiff has taken Bayer Aspirin tablets according to its directions from about 1934 to 1956 inclusive for the relief of 'headaches' and 'colds.'

' (a) Plaintiff was not aware during said time that Bayer Aspirin could cause stomach irritation as long as he followed its directions.

' (b) During all times when taking said Bayer Aspirin plaintiff believed that said Bayer Aspirin was safe for him to take for 'headaches' and 'colds.'

' [b] (1) During said times plaintiff believed that it was not necessary for him to consult a doctor as long as he followed said directions.

'11. Plaintiff now has a severe case of irritation of his stomach caused by prolonged use of said Bayer Aspirin from 1934 to 1956.

'12. Plaintiff now requires an operation to remove a portion of his stomach because of said stomach irritation from said prolonged use of said Bayer Aspirin.'

We must conclude that the ancient adage of Publilius Syrus, 'It is not every question that deserves an answer,' applies here. If the excellence of this discovery procedure is to be preserved, the requests for admissions must be germane, must be simply expressed, and they must be clearly and succinctly answerable.

Let a peremptory writ of mandate issue directing the superior court to order defendant Sterling Drug Company, Inc. to answer such of petitioner's 'Request for Admission of Truth of Certain Matters of Fact' as are set out under section I of this opinion, in accordance with the views herein expressed. Each party will bear its own costs.

BRAY, P. J., and DUNIWAY, J., concur.


Summaries of

Cembrook v. Superior Court in and for City and County of San Francisco

California Court of Appeals, First District, First Division
Feb 23, 1961
11 Cal. Rptr. 225 (Cal. Ct. App. 1961)
Case details for

Cembrook v. Superior Court in and for City and County of San Francisco

Case Details

Full title:Michael CEMBROOK, Petitioner, v. SUPERIOR COURT OF the State of…

Court:California Court of Appeals, First District, First Division

Date published: Feb 23, 1961

Citations

11 Cal. Rptr. 225 (Cal. Ct. App. 1961)