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.
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.
The statutory language appears to be mandatory. In the absence of any showing to the contrary it is unnecessary to decide whether or not a party may be relieved of failure to make a timely motion, or under what circumstances such relief might be granted.
Authority exists for the use of the prerogative writs to review interim orders in discovery cases. Mandamus is generally resorted to where the trial court has abused its discretion in denying or restraining discovery. (Coy v. Superior Court, supra, 58 Cal.2d 210, 216; West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d 407, 415; Durst v. Superior Court, supra, 218 Cal.App.2d 460, 464; and see Carlson v. Superior Court (1961) 56 Cal.2d 431, 435-436 [15 Cal.Rptr. 132, 364 P.2d 308]; Singer v. Superior Court (1960) 54 Cal.2d 318, 327 [5 Cal.Rptr. 697, 353 P.2d 305]; and Dowell v. Superior Court (1956) 47 Cal.2d 483, 486-487 [304 P.2d 1009].) Prohibition has been sought where it is alleged that the lower court has abused its discretion in permitting or ordering further discovery. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185 [23 Cal.Rptr. 375, 373 P.2d 439]; Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 368, fn. 1 [15 Cal.Rptr. 90, 364 P.2d 266]; Twin Lock, Inc. v. Superior Court (1959) 52 Cal.2d 754, 758 [344 P.2d 788]; and Gene Compton's Corp. v. Superior Court (1962) 205 Cal.App.2d 365, 381 [23 Cal.Rptr. 250].)
It is ordered that a peremptory writ of mandate and prohibition issue directing respondent superior court to vacate and set aside its order of November 6, 1964, compelling petitioner to make further response to the interrogatories filed with the court on September 21, 1964; and prohibiting respondent superior court from taking any proceedings in connection with the notices filed by the real party in interest on October 28 and October 30, 1964, respectively.
Sullivan, P.J., and Molinari, J., concurred.