Case Number: BC676088 Hearing Date: December 28, 2018 Dept: A

Flint v Kellman

MOTIONS FOR TERMINATING SANCTIONS (4)

Calendar: 6

Case No: BC676088

Hearing Date: 12/28/18

Action filed: 9/14/17

Trial: None

MP: Defendants: (1) Ashraf Hawari, M.D.; (2) Muntasir Hoque, M.D.; (3) Henry Sebata, M.D.; and (4) Elroy Vojdani, 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 Ashraf Hawari, M.D., Muntasir Hoque, M.D., Henry Sebata M.D., Elroy Vojdani, M.D. each filed a motion for terminating sanctions against Plaintiff for failure to comply with the Court’s orders regarding discovery.

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 August 3, 2018, the Court granted Dr. Hawari, Dr. Hoque, Dr. Sebata, and Dr. Vojdani’s motions to compel responses to discovery and accompanying requests for sanctions. The Court deemed the requests for admissions admitted and ordered Plaintiff to respond to Defendants’ form interrogatories, special interrogatories, and requests for production (set one) within 20 days of notice of the order, as well as pay $980 to defense counsel.

According to the attached Notice of Ruling on the discovery motions, the notice was served by mail on Plaintiff on September 27, 2018. (See Motions at Ex. B.) Thus, based on this September 27, 2018 service date following notice, Plaintiff had until October 22, 2018 to provide responses (20 days, plus an additional 5 days for mailing).

Defendants filed these motions on November 7, 2018. As of the date of the motions, they state they are not in receipt of discovery responses from Plaintiff. They also each filed notices of non-receipt of oppositions.

Based on Plaintiff’s failure to comply with the Court’s order and lack of oppositions to the motions, it appears that Plaintiff has abandoned this case. In light of Plaintiff’s lack of any response, there is no reason to believe that any lesser evidentiary sanctions will compel him to comply with his discovery obligations. Accordingly, the motions for terminating sanctions as brought by each of Dr. Hawari, Dr. Hoque, Dr. Sebata, and Dr. Vojdani are granted.

Defendants each request additional sanctions for bringing these motions. The Court will deny these requests because discovery sanctions are to go no further than necessary to compel discovery. Under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery. Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210.

RULING:

Grant the motions for terminating sanctions and deny requests for additional monetary sanctions.