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Deyo v. Kilbourne

Court of Appeal of California, Second Appellate District, Division Two

June 21, 1978

Civ. No. 53641


 [*777]  [**506]   The Appellate Department of the Superior Court of the State of California for the County of Santa Barbara having certified its opinion for publication, and this court having transferred the case pursuant to California Rules of Court, rule 62(a) and having set it for oral argument pursuant to rule 62(d), and the matter having been submitted, the Court of Appeal hereby adopts the opinion of the Appellate Department of the Superior Court of the State of California for the County of Santa Barbara as its own, in haec verba, as follows:

 CA(1)(1) (See fn. 1.) The trial court struck appellant's answer [***2]  on the ground that he had failed to properly answer interrogatories. Appellant appeals from the default judgment. 1


In May 1976, Mr. Deyo, a lawyer, filed a complaint against Mr. Kilbourne, his former client, seeking to recover $ 1,411.87 (plus interest) for services rendered. Mr. Kilbourne filed an answer denying liability.

 [*778]  On August 3, 1976, Mr. Deyo served Mr. Kilbourne with 39 interrogatories. Many of these interrogatories contained subparts.

Mr. Kilbourne was hospitalized for eight days in early July and was again hospitalized [***3]  from July 25, 1976, to August 25, 1976. On August 13, 1976, Mrs. Kilbourne wrote Mr. Deyo to ask for an extension of time to answer. She said her husband was seriously ill and was hospitalized. Mr. Deyo wrote to advise that he would not agree to extend the time to November 1, 1976.

On September 21, 1976, Mr. Deyo wrote to advise that sanctions would be sought unless answer were filed within 15 days. Mrs. Kilbourne again wrote Mr. Deyo advising him that Mr. Kilbourne had again been hospitalized and would not be able to answer the interrogatories until his health improved.

Mr. Kilbourne was hospitalized from September 9, 1976, to September 28, 1976. During the time he was hospitalized on various occasions, he underwent a renal biopsy and was diagnosed as having a pulmonary embolism, cardiac decompensation, and jaundice (among others). In a letter dated September 27, 1976, his doctor indicated that Mr. Kilbourne would be "housebound" for an indefinite period of time.

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84 Cal. App. 3d 771 *; 149 Cal. Rptr. 499 **; 1978 Cal. App. LEXIS 1917 ***

RICHARD N. DEYO, Plaintiff and Respondent, v. KENNETH B. KILBOURNE, Defendant and Appellant

Prior History:  [***1]  Municipal Court for the Santa Barbara-Goleta Judicial District of Santa Barbara County, No. 39168, Joseph Lodge, Judge.

Disposition: The judgment is reversed. The trial court is directed to set aside the order dated February 2, 1977 which struck appellant's answer to the complaint, entered appellant's default, and awarded attorneys fees.

Neither party may recover costs on appeal.


answers, interrogatories, discovery, sanctions, questions, attorney's fees, subdivision, motion to compel, answer to an interrogatory, deposition, no answer, default, substantial justification, evasive, orders, documents, records, extension of time, ultimate sanction, default judgment, hospitalized, advising, expenses, willful, imposition of sanctions, reasonable expenses, federal practice, trial court, disobedient, incomplete

Civil Procedure, Methods of Discovery, Interrogatories, General Overview, Discovery, Antitrust & Trade Law, Regulated Industries, Sports, Pleading & Practice, Pleadings, Answers, Time Limitations, Extension of Time, Pretrial Matters, Conferences, Pretrial Conferences, Discovery & Disclosure, Misconduct During Discovery, Judgments, Pretrial Judgments, Default & Default Judgments, Motion Practice, Governments, Courts, Authority to Adjudicate, Remedies, Costs & Attorney Fees, Default Judgments, Dismissal, Involuntary Dismissals, Default Judgments, Entry of Default Judgments