Deyo v. Kilbourne

• Decision Date: 21 June 1978
• Citation: 84 Cal.App.3d 771,149 Cal.Rptr. 499
• Court: California Court of Appeals Court of Appeals
• Parties: Richard N. DEYO, Plaintiff and Respondent, v. Kenneth B. KILBOURNE, Defendant and Appellant. Civ. 53641.

Page 499

149 Cal.Rptr. 499

84 Cal.App.3d 771

Richard N. DEYO, Plaintiff and Respondent, v. Kenneth B. KILBOURNE, Defendant and Appellant.

Civ. 53641.

Court of Appeal, Second District, Division 2, California.

June 21, 1978.

Gregg B. Hughes, Norwalk, for plaintiff and respondent

Pell & Phillips, Ventura, for defendant and appellant.

THE COURT. ^*

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:

The trial court struck appellant's answer on the ground that he had failed to properly answer interrogatories. Appellant appeals from the default judgment. ¹

FACTS

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.

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 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 answers 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.

In November, 1976, Mr. Deyo moved to strike Mr. Kilbourne's answer for his failure to answer interrogatories. Visiting Judge Elconin denied the motion for sanctions, but directed Mr. Kilbourne to file answers by December 15, 1976, and ruled that his answer would be stricken if no answers were filed.

Answers to interrogatories were filed on December 15, 1976. Although there was some response to each question, and the answers did suggest that a dispute existed concerning the amount of fees, most of the answers were clearly not fully responsive to the questions propounded.

On January 14, 1977, Mr. Deyo filed a second motion for an order "Striking Answer and Entering Judgment for Plaintiff; for Order Requiring Further Response to Interrogatories; For Reasonable Expenses and Attorney Fees, etc."

The motion was heard before Judge Lodge on February 2, 1977. The minutes state: "Motion granted. Plaintiffs request for sanctions granted in sum of $300.00". On February 8, 1977, judgment was entered against appellantfor the amount prayed for, plus interest, costs, and $300.00 in attorney fees.

Mr. Kilbourne filed a motion for a new trial and finally decided to employ counsel. The supporting affidavits reviewed appellant's illness. His counsel indicated that

appellant now realized the necessity of providing proper answers to the questions. The motion for a new trial was denied, and appellant filed a timely notice of appeal.

ISSUE

What sanctions are proper when a party fails to fully answer interrogatories?

DISCUSSION

1. Introduction.

Interrogatories expedite the resolution of lawsuits in a variety of ways. For instance, they provide an effective means of detecting false, fraudulent and sham claims and defenses which might otherwise be hidden behind evasive language in an adept pleading. If a claim or defense is sham, or there is no triable issue as to a particular fact, answers to interrogatories may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy. (See Code of Civil Procedure, Section 437c; DeSuza v. Andersack, 63 Cal.App.3d 694, 698, 133 Cal.App. 920 (1976); see e. g. Leasman v. Beech Aircraft Corp., 48 Cal.App.3d 376, 121 Cal.Rptr. 768 (1975).) ²

Interrogatories also enable counsel to evaluate the reasonable value of claims and defenses thereby encouraging prompt settlements. Interrogatories also serve to facilitate preparation for trial by providing a means of securing evidence and evidentiary leads. Once counsel ascertains that certain facts are established, he can focus on other aspects of the lawsuit.

Answers to interrogatories are admissible at trial against the answering party. ³ Thus, they serve to prevent equivocation by the other party and tend to safeguard against surprise. ⁴

While interrogatories serve useful purposes, they often are abused. Lengthy interrogatories suitable to major litigation, are often needlessly used in small cases. Questions are often repetitious or wholly irrelevant. ⁵ While our discovery laws were designed to prevent trial by ambush, the most common cry from lawyers is that they are being "papered to death". The costs of storage alone are enormous. Indeed, while interrogatories facilitate the search for truth the enormous expense of discovery tends to deter litigation by persons of moderate means.

Occasionally, overzealous counsel mistake the purpose of discovery. As one court wisely observed: "It is fundamental that the only objective of the pretrial discovery rules is to allow a party to obtain all of the facts relative to a claim or defense. Neither party may employ the discovery rules with the long-range objective of trapping the other party into the imposition of sanctions, especially the imposition of the most severe sanction dismissal." (Garrity v. Kemper Motor Sales, 280 Minn. 202, 159 N.W.2d 103, 107 (1968).)

Since the issue of sanctions requires an understanding of the discovery process, we will briefly summarize pertinent rules.

2. Permissible Questions.

Interrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular cause. (Sav-On Drugs v. Superior Court, supra, 15 Cal.3d 1, 7, 123 Cal.Rptr. 283, 538 P.2d 739; Pacific Tel. & Tel. v. Superior Court, supra, 2 Cal.3d 161, 172, 84 Cal.Rptr. 718, 465 P.2d 854. See, generally, Louisell & Wally, Modern California Discovery, 2d Ed. 1972, Section 5.01-5.17; 2 DeMeo, California Deposition & Discovery Practice (1975), Section 9.01; California Civil Discovery Practice (C.E.B.1975), Chapter 8; Powers: A Guide to Interrogatories in California Practice 48 So.Cal.Law Rev. 1221 (1975).) ⁶

For instance, a person may be forced to disclose the identity and location of persons having knowledge of particular relevant facts, but may not be required to reveal the identity of non-expert witness or to disclose the nature of their anticipated testimony. (City of Long Beach v. Superior Court, 64 Cal.App.3d 65, 134 Cal.Rptr. 468 (1976).) However, once a party has decided to call an expert witness, he may be required to reveal his name, address, field of expertise, and to summarize his testimony. (Sanders v. Superior Court, 34 Cal.App.3d 270, 109 Cal.Rptr. 770 (1973).)

3. Proper Answers. ⁷

"Interrogatories shall be answered separately and fully . . . under oath . . . objections thereto may be stated by the party addressed in lieu of response." (Code of Civil Procedure, Section 2030(a) (Emphasis added) (As amended in 1978).)

Verification of the answers is in effect a declaration that the party has disclosed all information which is available to him. If only partial answers can be supplied, the answers should reveal all information then available to the party. If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control. (See California Civil Discovery Practice, Section 8.48 (C.E.B.1975); 2 DeMeo, California Deposition and Discovery Practice, Section 9.01 (41) (2d Ed. 1975); 4A Moore's Federal Practice, Section 33.26; Milner v. National School of Health Technology, 73 F.R.D. 628, 632 (E.D.Pa.1977); Harlem River Consumers Co-op v. Associated Growers of Harlem, 64 F.R.D. 459, 463 (S.D.N.Y.1974).) ⁸

Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories. (Hunter v. International Systems & Controls Corp., 56 F.R.D. 617, 631 (W.D.Mo.1972).) Where the question is specific and explicit, an answer which supplies only a portion of the information sought is wholly insufficient. Likewise, a party may not provide deftly worded conclusionary answers designed to evade a series of explicit questions. (In re Professional Hockey Anti-Trust Litigation, 63 F.R.D. 641, 650-654 (E.D.Pa.1974) ⁹

A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. (Hunter v. International Systems & Controls Corp., supra, 56 F.R.D. 617, 625). Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response. (See C.E.B., California Civil Discovery Practice, Section 8.54 (C.E.B.1975).)

A party cannot state, "not applicable" where the interrogatory is clearly...