Case Number: BC658387 Hearing Date: May 25, 2018 Dept: B

# 9

levon l. harotunian,

Plaintiff,

v.

providence st. joseph medical center, et al.,

Defendants.

Case No.: BC658387

Hearing Date: May 25, 2018

[TENTATIVE] order RE:

motions for terminating sanctions against plaintiff

BACKGROUND

Plaintiff Levon Harotunian (“Plaintiff”) commenced this medical malpractice action on May 16, 2017 against various healthcare defendants for injuries he allegedly sustained on May 22, 2016 following an invasive surgical procedure. He alleges his vocal chords were damaged.

Defendant Yeong An Sheu, M.D. and Defendant Vartan Tarakchyan, M.D. each filed a motion for terminating sanctions against Plaintiff for failure to respond to discovery pursuant to Court order. The motions are not opposed.

LEGAL STANDARD

According to CCP §2023.030(d), the court may impose terminating sanctions dismissing the action. (See also CCP §575.2.) Misuse of the discovery process includes failing to respond or submit to an authorized method of discovery, disobeying a court order to provide discovery, and failing to confer with counsel in a reasonable and good faith attempt to informally resolve discovery disputes. (CCP §2023.010(d), (g), (i).) The Court weighs the following factors when considering the present motion: (1) plaintiff’s conduct, indicating whether his/her actions were willful; (2) the detriment to the party seeking discovery; and (3) the number of formal and informal unsuccessful attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)

DISCUSSION

On March 23, 2018, the Court granted Dr. Sheu and Dr. Tarakchyan’s motions to compel discovery responses, such that Plaintiff was ordered to provide responses within 20 days of notice of the Court’s order. On March 26, 2018, Dr. Tarakchyan served the notice of the Court’s ruling on Plaintiff’s counsel by mail.

Dr. Sheu filed his motion for terminating sanctions on April 20, 2018, and Dr. Tarakchyan filed his motion on April 30, 2018. As of the filing of their motions, both Defendants contend that Plaintiff has not yet provided responses in compliance with the Court’s order.

Based on Plaintiff’s failure to comply with the Court’s order and lack of opposition to the motions, it appears that Plaintiff has abandoned this case. In light of Plaintiff’s conduct, there is no reason to believe that any lesser evidentiary sanctions will force him to comply with his discovery obligations. Accordingly, each of Dr. Sheu and Dr. Tarakchyan’s motions for terminating sanctions is granted.

Dr. Tarakchyan requests sanctions on the basis that Plaintiff has misused the discovery process. The Court declines to award sanctions against Plaintiff.

CONCLUSION AND ORDER

The Court grants the motions for terminating sanctions against Plaintiff for failure to comply with the Court’s March 23, 2018 order, in favor of Dr. Sheu and Dr. Tarakchyan. Plaintiff’s complaint is hereby stricken and this action is dismissed as brought against Dr. Sheu and Dr. Tarakchyan.

Dr. Tarakchyan request for monetary sanctions is denied.

Each moving party is ordered to provide notice of this order.

Posted 5/22/18 at 2:58 p.m.