Opinion

Elston v. City of Turlock

  • 38 Cal. 3d 227
  • 211 Cal. Rptr. 416
  • 695 P.2d 713
  • 1985 Cal. LEXIS 257
Court
California Supreme Court
Filed
Mar 4, 1985
Status
Published
Author
Kaus
On the bench
Bird, Kaus, Lucas
Cited by
125 cases

Superseded by statute, as recognized in Tackett v. City of Huntington Beach

Later courts went against this

  • Superseded by statute, as recognized in Tackett v. City of Huntington Beach

    38 Cal.3d 227, 234 , superseded by statute on other grounds as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64
    California Court of AppealJan 28, 19947 citing opinionsby statuteother groundsRead it

The opinion

KAUS, J., Concurring.

I have signed the majority opinion in this very close case. If the requests for admission merely related to such matters as the authentication of documents or the truth of subsidiary facts, I would vote to affirm. As the majority opinion points out, however, the requests here were quite different; without really expecting an affirmative response the defense first asked plaintiff whether he admitted that he did not have a case. The expected denial then was to serve as the basis for interrogatories. Plaintiff’s failure to deny must have come as a pleasant surprise.

Under such circumstances the policy favoring a trials on the merits is overwhelming. The trial court’s refusal to grant relief under section 473 in *239 effect made it inevitable that dismissal of the action would be the true sanction for plaintiff’s counsel’s dereliction. Surely the prejudice, if any, to defendants was not such that a lesser punishment—imposed as a condition to relief under section 473—would not have sufficed.

Grodin, J., concurred.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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