Carol Ann Levine v. Dinh Vo, DDS		CASE NO. 110CV172192
DATE: 19 December 2014	TIME: 9:00	LINE NUMBER: 1

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 19 December 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 December 2014, the motion of Plaintiff Carol Ann Levine (“Plaintiff”) for an order setting aside the 7 March 2014 court order imposing terminating sanctions was argued and submitted.  Defendant Dinh Vo, DDS (“Defendant”) filed a formal opposition to the motion.

This motion was originally set on 31 October 2014 and was continued by request of counsel to 20 November 2014.  By request of counsel, the matter was again continued to this date.  Should a further continuance be requested, counsel are required to appear in person to make the request.

1. Statement of Facts

This case arises out of a claim for dental malpractice.

On 17 May 2010, Plaintiff, as a self-represented litigant, filed a complaint against Defendant, alleging professional negligence because of dental treatment that Defendant provided to her from approximately 2004 to 2008.

On 6 July 2012, after Plaintiff failed to serve Defendant with the complaint and attend multiple OSC hearings, the court dismissed the lawsuit.  Plaintiff filed a motion for relief from the dismissal on 20 June 2012.  The court granted Plaintiff’s motion for relief from the dismissal on 11 September 2012.  Plaintiff served Defendant with the complaint on 1 October 2012.

1. Discovery Dispute

On 15 November 2012, Defendant served Plaintiff with written discovery requests at 3400 Richmond Parkway #3322, San Pablo, California 94806 (the “San Pablo address”).  Notably, Plaintiff’s address as listed on the complaint was 2962 California Street, Apt. 8, San Francisco, California 94115 (the “San Francisco address”).  However, in her motion for relief from the dismissal, Plaintiff listed her address as the San Pablo address even though she did not file a notice of change of address with the court.

Plaintiff failed to respond to the written discovery requests.  Defendant subsequently filed a motion to compel initial responses to the discovery requests, which was granted on 15 March 2013.  Defendant served Plaintiff with a Notice of Entry of Order regarding the Court’s order compelling Plaintiff to provide initial responses on 21 March 2013, but Plaintiff still did not respond to any of the discovery requests.

Consequently, on 25 July 2013, Defendant filed a motion for terminating sanctions.  The matter proceeded to hearing on 6 September 2013, at which counsel—Thomas Ferri (“Mr. Ferri”)—specially appeared for Plaintiff and advised the Court that Plaintiff never received the discovery requests.  The Court continued the hearing on Defendant’s motion for terminating sanctions to 13 September 2013, and ordered Plaintiff to serve Defendant with code-compliant responses to the discovery requests, without objections, by the new hearing date.

Immediately following the 6 September 2013 hearing, Defendant’s counsel spoke with Mr. Ferri and confirmed that Plaintiff’s correct mailing address was the San Pablo address.

Plaintiff faxed her responses to the discovery requests to Defendant on 12 September 2013.  At the 13 September 2013 hearing, the Court ruled that Defendant’s motion for terminating sanctions was moot because Plaintiff served Defendant with her initial responses to the discovery requests.

Defendant believed that Plaintiff’s responses to the discovery requests were deficient and sent a meet and confer letter to Plaintiff at the San Pablo address on 7 October 2013.  Defendant did not receive a response and, therefore, filed a motion to compel further responses on 25 October 2013.  Defendant served Plaintiff with a copy of his motion at the San Pablo address.

Plaintiff asserts that on 19 November 2013, she faxed and mailed Defendant’s counsel a letter, advising him that she was in the process of moving to a new address.  In her letter, Plaintiff stated that her new address was 3221 Hood St., Oakland, California 94605 (the “Oakland address”), but that “[t]his address may not be permanent and will not be formally recorded now.”  (Levine Dec., Ex. 1.)  Defendant asserts that he never received Plaintiff’s 19 November 2013 correspondence.

Plaintiff did not oppose Defendant’s motion to compel further responses to the discovery requests and the Court granted the motion on 6 December 2013.  On the same date, Defendant served Plaintiff with a Notice of Entry of Order, regarding the 6 December 2013 court order, at the San Pablo address.

Plaintiff asserts that she faxed and mailed Defendant’s counsel a letter on 20 December 2013, which indicated in the heading of the correspondence that she resides at the Oakland address.  Defendant asserts that it never received Plaintiff’s 20 December 2013 correspondence.

On 30 December 2013, Defendant filed a motion to declare Plaintiff a vexatious litigant, require Plaintiff to furnish a security, and prohibit Plaintiff from filing new litigation pursuant to Code of Civil Procedure sections 391, 391.1, and 391.7.

Subsequently on 21 January 2014, Defendant’s counsel emailed Plaintiff, advising her that Defendant was going to file a motion for terminating sanctions and requesting that Plaintiff contact Defendant’s counsel regarding potential hearing dates.  Defendant then filed a motion for terminating sanctions on 24 January 2014, and served Plaintiff with the motion via U.S. mail at the San Pablo address.

On 30 January 2014, the court granted Defendant’s motion to declare Plaintiff a vexatious litigant, require Plaintiff to furnish a security, and prohibit Plaintiff from filing new litigation.  Specifically, the court ordered Plaintiff to furnish a security in the amount of $50,000 to defer Defendant’s costs and attorney’s fees within 15 days from the date of the order.  Defendant served Plaintiff with a Notice of Entry of Order regarding the court’s order finding her to be a vexatious litigant on 31 January 2014, at the San Pablo address.

Thereafter, on 7 March 2014, the Court granted Defendant’s motion for terminating sanctions, which Plaintiff did not oppose.  On the same date, Defendant served Plaintiff at the San Pablo address with a Notice of Entry of Order regarding the Court’s order imposing terminating sanctions.

Plaintiff asserts that on 12 June 2014, she meet with an anonymous third-party to discuss her case and the third-party told her that the Court granted Defendant’s discovery motion compelling further responses and subsequent motion for terminating sanctions.  On 17 June 2014, Plaintiff faxed Defendant’s counsel a letter dated 12 June 2014, stating that Defendant failed to provide her with a copy of the motion to declare her a vexatious litigant or the court’s 30 January 2014 order finding her to be a vexatious litigant.  Plaintiff requested that Defendant send a copy of those documents to her, at the Oakland address, and an attorney, Russell Robinson (“Mr. Robinson”).

Defendant’s counsel sent a reply letter to Plaintiff on 20 June 2014, outlining the procedural history of the case and indicating that Plaintiff failed to notify his office or the court that she was no longer receiving mail at the San Pablo address or that her address had otherwise changed.  On 23 June 2014, Defendant’s counsel sent copies of Defendant’s motion to declare Plaintiff a vexatious litigant, Defendant’s motion for terminating sanctions, and the court’s orders on those motions to Plaintiff at the Oakland address.

Plaintiff filed a Notice of Change of Address with the court on 30 July 2014, indicating that her new address is the Oakland address.  On the same date, Plaintiff filed a motion to set aside the court’s 30 January 2014 order, declaring her to be a vexatious litigant.

On 8 September 2014, Plaintiff filed the instant motion to set aside the Court’s 7 March 2014 order imposing terminating sanctions.

On 12 September 2014, the court denied Plaintiff’s motion to set aside the 30 January 2014 order finding her to be a vexatious litigant.  On 22 September 2014, Plaintiff filed a motion for reconsideration of the court’s 12 September 2014 order, which is now set for hearing on 4 November 2014.

On 8 October 2014, Plaintiff filed a Substitution of Attorney with the court, indicating that she is now represented by counsel, Mr. Robinson.

Defendant filed an opposition to the instant motion on 20 October 2014.

III.     Discussion

Plaintiff moves to set aside the court’s 7 March 2014 imposing terminating sanctions and dismissing this action in its entirety.

As a preliminary matter, Defendant asserts that “this motion should be stayed” because Plaintiff has not posted the $50,000 security ordered by the court on 30 January 2014.   (Opp’n., p. 5:3-4.)  Defendant requests that “the Court table this motion until [Plaintiff’s] motion for reconsideration [of the court’s 12 September 2014 order] is heard.”  (Opp’n., p. 6:20-23.)

Code of Civil Procedure section 391.6 provides that when a motion pursuant to Code of Civil Procedure section 391.1 is filed prior to trial and subsequently granted, the litigation is stayed until 10 days after the required security has been furnished and the moving defendant is given written notice thereof.

Defendant’s motion to declare Plaintiff a vexatious litigant and require her to post a security was made pursuant to Code of Civil Procedure section 391.1 and granted by the court on 30 January 2014.  In its 30 January 2014 order, the court ordered Plaintiff to post a security in the amount of $50,000 within 15 days of the date of the order.  Thus, under Code of Civil Procedure section 391.6, this litigation is automatically stayed until 10 days after Plaintiff posts the $50,000 security.  Plaintiff has not provided the Court with any evidence establishing that she posted the requisite security.

1. Conclusion and Order

NO TENTATIVE RULING.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara