Case Number: BC526816    Hearing Date: October 31, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

YUSRA EVELAND and HALLEY EVELAND,
Plaintiff(s),
v.
ENCINO HOSPITAL MEDICAL CENTER, PRIME HEALTHCARE FOUNDATION, TAMAR SAUER, M.D., AARON I. JENG, M.D., DOES 1, to 40, inclusive.

Defendant(s). Case No.: BC526816

Hearing Date: October 31, 2014

[TENTATIVE] ORDER RE: DEFENDANT AARON I. JENG, M.D.’S MOTION TO DISMISS ACTION AND REQUEST FOR MONETARY SANCTIONS

Defendant Aaron I. Jeng, M.D.’s Motion for Terminating Sanctions Against Plaintiffs Yusra Eveland and Halley Eveland for Failure to Comply with the Court’s July 7, 2014 Court Order compelling Plaintiffs to provide verified responses to Defendant’s Request for Production of Documents, Form Interrogatories, and Special Interrogatories, and ordering payment of $500 in sanctions is GRANTED, and the case is dismissed without prejudice pursuant to Code of Civil Procedure section 2023.030(d)(3).

Background

This wrongful death action arises from the alleged misdiagnoses of decedent Dennis Eveland’s (“Decedent”) health condition of painful headaches, nausea, and vertigo on June 9, 2012. Plaintiffs Yusra Eveland, spouse, and Halley Eveland, son (collectively “Plaintiffs”) allege that the Decedent’s diagnosis was provided by Defendants Dr. Tamar Sauer and Dr. Aaron Jeng, who were allegedly employed by Defendant Encino Hospital Medical Center. (Form Compl. at p. 4.)

Plaintiffs allege that Dr. Sauer and Dr. Jeng misdiagnosed Decedent’s medical complaints as a heart attack and treated it with heparin, which exacerbated Decedent’s condition and led to a fatal inter-cranial hemorrhage on June 11, 2012. (Id.) On June 5, 2013, Plaintiffs alleged that they gave notice of their intent to sue Defendants, per CCP § 364. (Id.) The complaint alleges one cause of action for general negligence.

On April 29, 2014, Defendant Jeng filed several motions which were unopposed: (1) Motion to Compel Plaintiffs to Provide Answers to Special Interrogatories; (2) Motion to Compel Plaintiffs to Provide Answers to Form Interrogatories; (3) Motion to Compel Plaintiffs to Provide Answers to Request for Production of Documents; (4) Motion for Establishing Admission; and (5) Request for Sanctions. These motions were properly served on Plaintiffs on May 1, 2014. On July 8, 2014, the Court granted Defendant Jeng’s motions to compel and impose sanctions in the amount of $500.00. Plaintiffs were ordered to provide verified responses to the Form and Special Interrogatories and the Demand for Production, as well as to pay the sanction to Defendant Jeng or his counsel by July 18, 2014. (Order re Mot. to Compel at 2.)

On July 8, 2014, Defendant Jeng filed a notice of ruling, indicating service on Plaintiffs by mail on July 7, 2014. The proof of service shows service on Plaintiffs at the same address listed on their Complaint, 7739 Owensmouth Avenue, Canoga Park, CA 91304. According to counsel for Defendant Jeng, Plaintiffs have not provided responses to any of the discovery requests as ordered, and have not paid the monetary sanctions. (Motion, Barkus Decl.¶7.) On August 6, 2014, Defendant Jeng’s counsel sent Plaintiffs a meet and confer letter requesting compliance with the Court’s order, and stating that if they do not comply, Defendant would file a motion for terminating sanctions. (Barkus Decl. ¶8, Ex. 2 to Barkus Decl.) Plaintiffs failed to respond to this letter. (Barkus Decl. ¶8.)

On August 21, 2014, Defendant Jeng filed this motion to dismiss for Plaintiffs’ failure to obey the Court’s discovery order and to pay the $500 sanction. Defendant Jeng also seeks an order that Plaintiffs pay monetary sanctions of $1,500 for disobeying the Court’s discovery orders pursuant to CCP § 177.5. Plaintiffs have not filed an opposition to Defendant Jeng’s motion.

Discussion

The complaint filed by Plaintiffs on September 9, 2013, indicates that the Plaintiffs are pro per and that their address for service is 7739 Owensmouth Avenue, Canoga Park, CA 91304. The complaint is the only document that Plaintiffs have filed in this case—no proof of service of summons and complaint on any defendant has been filed with the Court. Defendant Jeng is the sole defendant in the action who has answered the complaint and filed motions against Plaintiffs. All discovery, the notice of ruling, and this present motion to dismiss were served upon Plaintiffs at their Canoga Park address and there is no indication that the mailing address is incorrect or service in any way not proper.

Terminating Sanction

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) 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.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Further, preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326).

The Discovery Act provides for imposition of terminating sanctions for misuse of the discovery process, including for “disobeying a court order to provide discovery.” (CCP §2023.010(g), §2023.030.) Code of Civil Procedure section 2023.030(d) provides:

“The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party until an order for discovery is obeyed.
(3) An order dismissing the action, or any part of the action, of that party.
(4) An order rendering a judgment by default against that party.”

In this case, the Court finds that terminating sanctions are warranted based on Plaintiffs’ failure to comply with the Court’s July 8, 2014 order. Plaintiffs failed to provide the requested discovery, did not oppose the motion, and did not attend the hearing. Further, Defendant Jeng served the Court’s notice of ruling to Plaintiffs on July 8, 2014. However, Plaintiffs did not comply with the Court’s July 8, 2014 order to produce discovery repsonses by the July 18, 2014 date as required. Additionally, Plaintiffs failed to respond to Defendant Jeng’s meet and confer letter sent on August 6, 2014, requesting Plaintiffs’ compliance with the Court’s order and providing notice of this present motion.

Although dismissal of a case is a harsh penalty, it appears that Plaintiff’s failure to respond to this Court’s order compelling discovery responses amounts to willful disobedience of the Court’s order. Plaintiffs have been given repeated opportunities to comply with their discovery obligations, but have not taken any action to respond to discovery, respond to the Court’s order, respond to a meet and confer letter, or even oppose this motion. Absent compliance, Defendant Jeng cannot defend himself in the lawsuit. In light of this history, there is no reason to believe that any lesser evidentiary sanctions will force Plaintiffs to comply with their obligations. Accordingly, Defendant Jeng’s motion for terminating sanction is GRANTED. Plaintiffs’ complaint is hereby dismissed without prejudice as to Defendant Jeng.

Monetary Sanction Under California Code of Civil Procedure § 177.5

Code of Civil Procedure section 177.5 provides that:

A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both.

Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.

The decision to impose monetary sanction is within the court’s discretion. (People v. Ward (2009) 173 Cal. App. 4th 1518, 1527.) As stated in CCP § 177.5, due process standards require adequate notice and opportunity to be heard prior to the imposition of sanctions and should be more informative than a mere recitation of the words of the statute. (Caldwell v. Samuels Jewelers (1990) 222 Cal. App. 3d 970, 976.)

On July 8, 2014, the Court granted Defendant Jeng’s request for monetary sanctions in the amount of $500 under CCP Sections 2030.290(c), 2031.300(c), and 2033.280(c) for failure to serve timely discovery responses. In this present motion to dismiss, Defendant Jeng has requested the Court to impose CCP Section 177.5’s maximum sanction of $1,500 for Plaintiffs’ failure to comply with the Court’s July 8, 2014 order. Defendant Jeng has not sufficiently stated why imposing the maximum penalty is justified against Plaintiffs. Further, the Court finds that dismissal of the action is an adequate sanction for failure to provide discovery responses.

Defendant Jeng’s request for an additional monetary sanction of $1,500.00 under CCP § 177.5 is DENIED.

Conclusion

The motion of Defendant Aaron I. Jeng, M.D. for terminating sanctions is GRANTED as to Defendant Jeng alone, and the case is dismissed as to Defendant Jeng without prejudice. Defendant Jeng’s request for additional monetary sanctions under CCP § 177.5 is DENIED.

DATED: October 31, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court