2016-00189355-CU-MM

Natalie Owen vs. Sutter Health

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Hale, Adam

Defendants Sutter Health and Twin Cities Surgical Hospital LLC fka Sutter Surgical Hospital North Valley’s Motion for Terminating Sanctions, or in the Alternative, to Vacate the Trial date is unopposed but is denied, without prejudice.

Plaintiff alleges a claim for medical negligence arising out of a redo laparoscopic procedure performed on January 23, 2015. Plaintiff’s counsel withdrew from representing her in October of 2017 and moving party has been unsuccessful in its attempts to communicate with the self-represented plaintiff. The motion to withdraw was granted because Plaintiff’s counsel had no current address for his client and had lost communication with her.

Defendant served Supplemental Interrogatories, an Amended Notice of Deposition, and Requests for Production on plaintiff on December 29, 2017. Plaintiff did not appear at her January 23, 2018 deposition, nor did she comply with the other discovery.

A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. The trial court should select a sanction that is tailored to the harm caused by the withheld discovery. Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.) Indeed, “‘The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. [Citations.]'” ( Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782.)

The discovery statutes thus “evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure (see Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928 -929; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 10), a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective (see Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516; Doppes, supra, 174 Cal.App.4th at p. 992; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399; Lopez, supra.)

A terminating sanction is denied as it does not reflect the incremental approach to discovery sanctions. Moreover, a terminating sanction would put defendant in a better position than it would be if it had received the discovery because it appears that plaintiff has previously provided some discovery responses when she was represented by counsel given that some of the discovery requests were “supplemental.” It is not clear from the motion what discovery has thus far been provided by the plaintiff, or what additional documents have been withheld.

California courts have held that “‘The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. [Citations.]” ( Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 782). In any event, a terminating sanction is not proper unless defendant is being deprived of the ability to defend itself. The discovery sanction cannot put the propounding party in a better position than they would have been in if they had received the discovery. Puritan Insurance Co. v Superior Court (1985) 171 Cal.App.3d 877, 884.

There has been no prior court order compelling the requested discovery. Rather, the first remedy requested is the termination of the action. Although it appears that plaintiff has abandoned her claim because she cannot be located, the court is hesitant to terminate the action when it is likely she does not have actual notice of the motion since it was served at an address that counsel could not confirm as current. However, the Court notes that plaintiff had an obligation to inform counsel of her address, and the fact that she may not have had notice of the motion will not prevent an ultimate termination of the action if she continues to avoid her discovery obligations.

The motion for terminating sanctions is denied, without prejudice. However, Plaintiff is ordered to provide responses to the discovery and appear for her deposition as previously noticed on or before April 7. Failure to obey this court order may result in future sanctions including but not limited to a terminating sanction.

As defendant is concerned that it may be involved in unnecessary trial preparation, the current trial date is hereby vacated.

This case is referred to Trial Setting Process for selection of Trial and Mandatory Settlement Conference dates. All counsel (including parties appearing in pro per) shall confer and agree upon trial and settlement conference dates. Available dates can be obtained on the court’s web site at , or by recorded message at 916-874-6098. Plaintiff’s counsel must notify the court of the selection of Mandatory Settlement Conference and Trial dates within 60 days of the date of this order by completing the request form at . If the parties have not agreed on dates before the 60th day, court staff shall assign Mandatory Settlement Conference and Trial dates that are next available, unless an extension of time has been granted by the appropriate Case Management Program Judge.

The discovery cut-off date shall track the new trial date.