2014-00157168-CU-MM

Algrie Monique Bridges vs. Akiba E. Green D.O.

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Hale, Adam P.

Defendant Sutter Health Sacramento Sierra Region dba Sutter Memorial Hospital’s motion for terminating sanctions is ruled upon as follows.

I. Overview

This is a medical malpractice case. The plaintiffs are Algrie M. Bridges (“Algrie”) and Jordan A. Hicks (“Jordan”), by and through his guardian ad litem (collectively “Plaintiffs”).

Plaintiffs filed this action on 1/8/2014. They were initially represented by the Poswall, White & Cutler law firm (“PWC”). On 7/29/2015, PWC substituted out and Nancy Hersh (“Hersh”) substituted in.

On 8/25/2017, the Court granted Plaintiffs’ motion to continue trial based on the parties’ stipulation. (Declaration of Adam Hale (“Hale Decl.”), Exs. B, C.) The 9/25/2017 trial date was vacated and the parties were referred back to the Trial Setting Process. Co-Defendant Akiba Green, D.O. (“Green”) later moved for trial continuance, and trial was continued to 1/7/2019.

On 6/18/2018, the Court granted Hersh’s motion to withdraw as counsel. Plaintiffs were then left without counsel.

On 11/8/2018, Defendant filed a motion for terminating sanctions arguing that Plaintiffs prevented the depositions of two percipient witnesses and their experts.

On 12/3/2018, Dale McKinney (“Mckinney”) substituted in as counsel for Algrie only. On 12/6/2018, McKinney filed a substitution of attorney for Jordan, but McKinney did not sign the form. (ROA 206.)

The Court heard Defendant’s motion for terminating sanctions on 12/11/2018. The Court denied the motion for terminating sanctions since Defendant failed to demonstrate that the Court had issued an order compelling any of the depositions and that Plaintiffs had unreasonably failed to comply with an order. The Court granted Defendant’s alternative motion to compel the depositions of the two percipient witnesses and Plaintiffs’ retained experts. In its tentative ruling, the Court ordered Plaintiffs to provide Defendant with the contact information of the two percipient witnesses (or the dates on which they would be available for deposition), and to provide Defendant the dates on which each of their nine retained experts would be available for depositions by no later than 12/18/2019. Defendant was directed to provide notice of the ruling by no later than 12/18/2018. In its submitted ruling, the Court affirmed the ruling with the following modification:

Plaintiffs shall also no later than Friday, December 14, 2018 confirm with defendant whether their nine retained experts are available for deposition on the dates set forth in the previously-served deposition notices, December 19, 20 and 21, 2018. The court understands from the plaintiff that confirmation of those dates may require plaintiff’s counsel to make the financial arrangements necessary for the experts’ retention. If any of the deponents
are unavailable on the currently-noticed dates, the court orders the parties to meet and confer on new dates, mindful of the fact that trial is set for 1/7/19.

(Hale Decl., Ex. D.) The Court observes that there was a typographical error in the tentative ruling which required Plaintiffs’ compliance by 12/18/2019, rather than 12/18/ 2018.

On 12/14/2018, McKinney substituted out as Algrie’s counsel. (ROA 214.) The Court’s records do not reflect that McKinney substituted out as Jordan’s counsel. On 12/19/2018, the Court held an in chambers conference on Algrie’s ex parte application to request that expert witness declarations take place via videoconference. Attorney Hope Elder stated that she was present to represent Jordan’s interest, but she had not substituted into the case. Attorney Monrow Mabon appeared by telephone, but he had not yet substituted into the case. (ROA 215.) The Court denied the ex parte application. (Id.)

On 12/31/2018, attorney Theida Salazar (“Salazar”) substituted in as Jordan’s counsel. (ROA 221.)

Trial was initially set for 1/7/2019. At the 1/7/2019 civil trial assignment, Salazar made an oral motion to continue the trial on behalf of Jordan. Algrie joined the motion. The Court granted the oral motion. The trial is now scheduled for 5/14/2019.

Defendant filed the instant motion for terminating sanctions on 1/9/2019. (ROA 231.)

On 1/24/2019 Stephanie Finelli (“Finelli”) filed an association of counsel for Algrie and Jordan. (ROA 239.)

Defendant moves for terminating sanctions on the grounds that:

[T]rial is scheduled to commence on January 7, 2019, and plaintiffs’ continuous and willful abuse of discovery and failures to obey court orders have prevented this moving defendant from taking the depositions of two (2) key percipient witnesses who were disclosed by plaintiffs over four (4) years ago, as well as the depositions of plaintiffs’ nine (9) disclosed experts. It would be a waste of judicial resources, place an unnecessary burden on the court, and be completely unfair to this moving defendant trial were to begin on January 7, 2019, when plaintiffs have deliberately and tactically avoided their discovery obligations and ignored multiple court orders and the numerous formal and informal good faith meet and confer efforts by this moving defendant.

(Motion, 2:8-16.) The Court notes that at the time the motion was filed, trial had already been continued to 5/14/2019. Thus, Defendant misrepresents in its motion that trial “is scheduled to commence on January 7, 2019.”

II. Legal Standard

“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.” (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal. App. 2d 300, 304.) “The penalty 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. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 793.) 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.)

Courts consider the totality of circumstances in deciding whether to impose

terminating sanctions, including such factors as whether the offending party’s conduct was willful, the detriment to the moving party, and the number of formal and informal attempts made to obtain the discovery. (Lang v. Hochman (2000) 77

Cal.App.4th 1225, 1245-46.) “[W]here a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 [quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 280].) In ordering sanctions, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. ( Doppes, supra, at pp. 991-992.)

III. Defendant’s Position

a. Failure to Obey Court Orders

Defendant claims that Plaintiffs have disobeyed two court orders.

The first is the 8/25/2017 order on Plaintiffs’ motion to continue trial based on the parties’ stipulation. (“Stipulation.”) Pursuant to the Stipulation, the parties agreed that the depositions of certain percipient witnesses (including Jacqueline Lacy and Joanne Bridges) and experts would be completed after the discovery cut-off, and no expert depositions would take place until all percipient witness depositions have been completed. (Hale Decl., Exs. B, C.) Defendant insists that the Court “ordered” Plaintiffs to “fulfill the terms of said stipulation” by providing Defendant with the contact information for percipient witnesses, Jacqueline Lacy (“Lacy”) and Joanne Bridges (“Bridges”). (Motion, 2:27-28.)

The second is the 12/11/2018 Order on Defendant’s initial motion for terminating sanctions. (Hale Decl., Ex. D.) Algrie did not provide the contact information for Lacy and Bridges until 12/23/2018, five days after the Court ordered deadline. On 12/14/2018, Algrie confirmed that her experts would be available for videoconference depositions on the scheduled dates, except for two experts who needed to reschedule. (Hale Decl., Ex L.) Defendant deferred to Plaintiffs regarding the rescheduling of the two experts, but explained that all experts must appear in person and not by videoconference. (Id.) One of Plaintiffs’ experts appeared for deposition on January 4, 2019. (Declaration of Stephanie Finelli, Ex. 6.)

b. Misuse of the Discovery Process

Defendant further advances that Plaintiffs have misused the discovery process with respect to the percipient witness depositions/information and expert discovery.

i. Percipient Witnesses

In support of their first motion for terminating sanctions, Defendant includes copies of the notices of taking deposition of various witnesses, including Lacy and Bridges. (Declaration of Adam Hale, Ex. C, ROA 175.) The first notice was served on Hersh on 6/17/2016 for depositions to take place in August 2016. (Id.) A year later, Defendant served Hersh with notices of taking deposition of Lacy and Bridges. (Id. Exs. G, H.) In September 2018, Defendant served Algrie and Hicks, in pro per, with notices of taking deposition of Lacy and Bridges, for October 2018 depositions. (Id. Ex. Q.) None of the depositions went forward. Throughout this two-year period, Defendant attempted to obtain Lacy’s and Bridges’ contact information from Plaintiffs or confirmation whether Plaintiffs’ counsel has authority to accept service on their behalf. The information was never provided. In July 2017, Plaintiffs responded that the witnesses could be contacted through Hersh. Defendant also independently attempted to locate the witnesses to serve them with subpoenas. Multiple attempts were made, but all were unsuccessful.

According to Defendant, Plaintiffs failed to comply with the Stipulation, wherein the parties purportedly “agreed to complete” Lacy’s and Bridges’ deposition. (Motion, 2:28-3:1.) Defendant relies on the following provision in the Stipulation “no experts shall be deposed until the depositions of all percipient witnesses have been completed.” (Hale Decl., Ex. B.)

Defendant questions Algrie’s credibility because just nine days before Algrie sent the witness’ contact information, she maintained that she had no further information. (Hale Decl., Exs. G, H.)

ii.Expert Witnesses

Defendant further contends that Plaintiffs failed to comply with their discovery obligations in relation to their expert witnesses. Although expert depositions were scheduled for 12/19/2018, Algrie did not timely produce the experts’ files. On December 15th, Algrie emailed the file information. According to Defendant, “[t]he documents Ms. Bridges attached to the email that she claimed were the expert files included merely 30 pages of medical records and seven (7) photographs. (Hale Decl. ¶ 16; see Exhibit “M.”) There is no record or anything that would suggest Ms. Bridges or plaintiffs’ counsel ever transmitted anything electronically or in a hard copy to any particular expert. (Hale Decl. ¶ 17.) Counsel has received nothing that has been authored by any of plaintiffs’ experts pertaining to work performed on the file or any list of depositions or records reviewed by any one of plaintiffs’ experts. (Hale Decl.

¶17.).” (Motion, 6:19-25.) No actual expert files have been produced for any of Plaintiffs’ experts. (Hale Decl., ¶ 19.)

IV. Plaintiffs’ Position

Plaintiffs counter that they did not willfully disobey any Court order.

Plaintiffs advance that the 8/25/2017 order on Plaintiffs’ motion to continue trial did not order Plaintiffs to produce Lacy or Bridges for deposition. They further insist, that even if the Court did order them to produce all witnesses for deposition, Plaintiffs provided Hersh all of the witness contact information in May 2016 (Declaration of Stephanie Finelli (“Finelli Decl.”), Ex. 1), and Hersh’s “own failure to provide this information may not result in dismissal of Plaintiffs’ case.” (Opposition, 8:12-13.)

Plaintiffs also maintain that they did not disobey the 12/11/2018 Order on Defendant’s initial motion for terminating sanctions since the ruling directed them to provide the lay witness information by 12/18/2019. Algrie sought to obtain Lacy’s and Bridges’ appearance for deposition and when unsuccessful, Algrie provided the contact information on 12/23/2018. (Declaration of Algrie Bridges (“Bridges Decl.”) ¶ 19.) Plaintiffs observe that Defendant did not mail out the order until 12/18/2018, the date Plaintiffs’ compliance was due. With respect to the expert witnesses, Plaintiffs contend that Algrie contacted Defendant on 12/14/2018 and confirmed that most of her experts would be available on December 19, 20, 21, as ordered. (Finelli Decl., Ex. 8.) Moreover, on 12/19/2018, Algrie appeared at Green’s counsel’s office, with expert Dr. Marilyn Buzolich available for a videoconference deposition, but Defendants refused to take a videoconference deposition. (Bridges Decl., ¶ 11.) Algrie also explains that Hersh had retained some experts, but had not spoken or paid them since mid-2017, and had not provided them with documentation to complete their reports. (Bridges Decl., ¶ 6.) When Algrie contacted the expert witnesses regarding setting depositions, they would not speak with Algrie in pro per, and required that she retain an attorney. ( Id.) On 12/17/2018, Algrie retained Hope Elder to assist her with retaining the experts and facilitating their attendance at depositions. (Bridges Decl., ¶ 8.)

Plaintiffs lastly contend that Defendant cannot show prejudice since trial is now set for 5/4/2019, and Defendant has the opportunity to take the witnesses’ depositions.

V. Analysis

The Court agrees with Plaintiffs that they have not willfully violated the Court’s orders such that terminating sanctions are warranted.

With respect to the 8/25/2017 Order on Plaintiffs’ motion to continue trial, nothing in the Order required Plaintiffs to provide witness contact information. (Hale Decl., Ex. C.) The Order merely stated “[g]ood cause appearing and based on the stipulation of the parties, Plaintiffs’ motion to continue the trial is granted. The Court finds good cause for continuance due to the stipulation of the parties and the unavailability of Plaintiffs’ experts.” (Id.)

With respect to the 12/11/2018 Order on Defendant’s initial motion for terminating sanctions, the Court ordered that “Plaintiffs shall also no later than Friday, December 14, 2018 confirm with defendant whether their nine retained experts are available for

deposition on the dates set forth in the previously-served deposition notices, December 19, 20 and 21, 2018. . . .” (Hale Decl., Ex. D.) Algrie confirmed that the experts would be available for deposition, albeit by videoconference. Algrie also provided Defendant with Lacy’s and Bridge’s contact information, although a few days late.

Importantly, now that the trial has been continued to May 2019, the Court perceives no prejudice to Defendant. Defendant now has Lacy’s and Bridges’ contact information so that it may subpoena them. Additionally, Plaintiffs’ expert witnesses have been retained and there is sufficient time to take their depositions. In these circumstances, terminating sanctions are not warranted as they would merely be punitive and place Defendant in a “better position” than it would have been in if it had received the discovery. (Puritan Insurance Co. v Superior Court (1985) 171 Cal. App.3d 877, 884.)

The motion for terminating sanctions is DENIED. The parties are directed to meet and confer regarding mutually convenient deposition dates for Plaintiffs’ experts.

Defendant’s request for evidence sanctions prohibiting Lacy and Bridges, and Plaintiffs’ nine retained experts from offering testimony at trial is DENIED without prejudice for the discretion of the trial court.

Both parties’ requests for monetary sanctions are DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.