Case Number: BC676088 Hearing Date: June 08, 2018 Dept: A

Flint v Kellman

MOTION FOR TERMINATING SANCTIONS

Calendar: 4

Case No: BC676088

Hearing Date: 6/8/18

Action filed: 9/14/17

Trial: (CMC 6/8/18)

MP: Defendants Thomas S. Lam, M.D.

RP: None

ALLEGATIONS IN COMPLAINT:

This is a medical malpractice action that Plaintiff Michael Terry Flint (“Plaintiff”) commenced against various healthcare defendants. Plaintiff alleges that, beginning February 2016 and thereafter, Defendants treated Plaintiff. Plaintiff alleges Defendants’ care and treatment were negligent such that he suffered injuries to his ureter and was forced to undergo additional surgeries. (Compl., ¶28.)

The complaint, filed September 14, 2017, alleges causes of action for: (1) professional negligence; and (2) lack of informed consent.

RELIEF REQUESTED:

Defendants Thomas S. Lam, M.D. moves for terminating sanctions, or in the alternative issue and evidentiary sanctions pursuant to CCP §§2023.010 and 2023.030(b)-(d).

DISCUSSION:

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.)

On March 23, 2018, the Court granted Dr. Lam’s motion to compel discovery responses to form interrogatories, set one; special interrogatories, set one; and request for production of documents, set one. Plaintiff was ordered to provide responses within 20 days of notice of the Court’s order. The Court also ordered Plaintiff to pay monetary sanctions in the amount of $840.00. Defendant mailed notice of the order on March 27, 2018.

Defendant contends that as of the date of filing the motion on April 30, 2018, Plaintiff has not yet provided responses or paid the monetary sanctions.

Based on Plaintiff’s failure to comply with the Court’s order and lack of opposition to the motion, 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 compel him to comply with his discovery obligations. Accordingly, the motion for terminating sanctions is granted.

RULING:

Grant the motion for terminating sanctions.