Opinion
A127000
11-10-2011
NEAL TREMBATH, Plaintiff and Appellant, v. JACOB MATHIS, M.D., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. CGC-04-436830)
I. INTRODUCTION
In December 1993, respondent, then a neurosurgeon at St. Luke's Hospital in San Francisco, performed a laminectomy (a form of spinal surgery) on appellant. Eleven years later, in December 2004, appellant filed an in pro per medical malpractice action against respondent and served the summons and complaint in that action on respondent three years later, in December 2007. After several years of litigation, including discovery, various and sundry motions, and the imposition of discovery sanctions on appellant, in 2009 the trial court granted summary judgment in favor of respondent on the ground that the discovery had established that the statute of limitations barred appellant's action. Still appearing in pro per, appellant appeals on several grounds. We reject them all and affirm the judgment in favor of respondent.
II. FACTUAL AND PROCEDURAL BACKGROUND
After he had felt several weeks of arm pain, appellant, then apparently 24 years old, was operated on by respondent, then allegedly the Chief Neurosurgeon at St. Luke's Hospital in San Francisco, in December 1993. The surgery performed was a "cervical laminectomy," an operation intended to correct several herniated cervical discs in appellant's spine.
Using a form complaint, appellant filed a tort action against respondent in San Francisco Superior Court on December 3, 2004. The complaint alleged two causes of action, one for "General Negligence" and the other for "Intentional Tort," although both recited the same basic allegation: "Defendant negligently caused damage to plaintiff by negligently performing surgery at Davies Medical Center, San Francisco, California, on or about 1993. Dr. Mathis subsequently intentionally concealed the negligence and its consequences and fraudulently advised plaintiff that the surgery was successfully and properly performed and that the complaints made by plaintiff of his condition were not related to the surgery. [¶] Plaintiff did not discover the true facts until within one year of the filing of this complaint."
The complaint also included a request for punitive damages, which was later deleted (after the filing of a motion to strike by respondent) via an amended complaint filed by appellant, still in pro per, in May 2008.
The summons and complaint were personally served on respondent at his home in Kentfield, Marin County, on December 3, 2007.
During the three years between the filing of the original complaint and its service on respondent, the trial court issued 12 orders to show cause to appellant because of the latter's failure to file any proof of service. Appellant responded to these orders to show cause by representing that he was (1) still suffering medically, (2) awaiting further surgery, (3) recovering from later surgery, and/or (4) trying to retain an attorney. Regarding the final point, appellant represented to the court at least five times that he was "endeavoring to hire an attorney" and "hopefully [will] be able to retain an attorney" once he became "more functional."
After service had been effected on respondent, he filed a motion to dismiss the action on February 4, 2008, under Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(1), for appellant's delay in effecting service. Appellant opposed the motion by in pro per filings on February 20 and March 27, 2008.
In the course of these filings, appellant stated that he was in the process of both (1) recovering from later, allegedly successful, surgery to repair his spinal injuries and (2) retaining an attorney to represent him. More specifically, in a declaration filed on March 27, 2008, appellant stated that he had recently consulted with two attorneys, both of whom "expressed interest in representing me in this case." He continued: "In order to obtain legal representation, it was necessary for there to be conclusive evidence of liability and, now that there is such evidence, I am having greater success in finding an attorney to represent me."
The trial court denied respondent's motion to dismiss on April 8, 2008.
After the May 2008 filing of appellant's amended complaint, respondent filed his answer on June 20, 2008. In it, he pled that the action was barred by the statute of limitations applicable to medical malpractice actions, Code of Civil Procesure section 340.5
Respondent noticed appellant's deposition for September 3, 2008, but that date was taken off calendar when appellant notified respondent's counsel that he could not appear for his deposition because he had not yet retained counsel, although he was still attempting to do so. Respondent's counsel waited another six months and then re-noticed appellant's deposition for March 19, 2009. Appellant again resisted appearing for his deposition and producing documents, again on the basis that he was still trying, but had not yet succeeded, in retaining an attorney to represent him. Appellant specifically stated that he would "not give a deposition without court order unless I have an attorney represent me at the deposition." In the meantime, however, the parties exchanged "Case Management Statements" required by the trial court, and appellant served and respondent replied to (although not to appellant's satisfaction) interrogatories.
On March 17, 2009, respondent filed a motion to compel appellant to appear for a deposition. (Ibid.) Appellant opposed this motion on the grounds that he did not yet have legal representation, and argued that he was "preclude[d] from obtaining . . . legal representation" because respondent had not provided him, in response to his interrogatories, with any information "regarding Defendant's insurance liability coverage."
On April 15, 2009, and after hearing oral argument, the trial court granted respondent's motion to compel appellant's deposition, and ordered him to appear on or before May 1, 2009, for such a deposition. It also ordered sanctions against appellant in the amount of $390.
The following day, April 16, 2009, respondent served and filed another notice of appellant's deposition, setting it for April 27. A few days later, appellant faxed respondent's counsel stating that he was in the process of retaining an attorney, and requested that the deposition be re-scheduled for May 1. Respondent's counsel declined to agree to this and, as a result, appellant did not appear for his deposition on April 27.
The following day, April 28, 2009, respondent filed a motion for terminating and monetary sanctions against appellant for his failure to appear for his deposition. This motion was the subject of voluminous briefing between the parties and a hearing before the trial court (Commissioner Paul Slavit) on May 20, 2009. After that hearing, the court denied respondent's request for terminating sanctions, but did impose discovery sanctions, i.e., precluded appellant from offering either testimony, oral or written, "in connection within [sic] any allegation or issue raised in this action" or "offering in evidence any documents, records, or other writings that have not already been produced to defendant in un-redacted form." The court also awarded additional monetary sanctions ($790) against appellant.
On July 1, 2009, the trial court denied appellant's motion to reconsider its discovery sanctions order.
In the interim, i.e., on May 29, 2009, respondent filed a motion for summary judgment on the grounds that, due to appellant's responses to interrogatories submitted by respondent, his medical malpractice claim was barred by the statute of limitations, specifically Code of Civil Procedure section 340.5. The interrogatory in question had asked appellant to state "the exact date on which you discovered the 'true facts' as alleged" in the key paragraphs of appellant's amended complaint. Per this motion, three of the key facts that had been previously disclosed by appellant were: "On or about April 1, 1996, I learned that the surgical wound was draining two years following the surgery: a granuloma had formed in the surgical wound at the site where defendant had belatedly removed an overlooked suture. [¶] On or sometime after April 18, 1997, I learned that Defendant had surgically damaged my spinal cord. [¶] On or about July 31, 1997, I learned that there were free-floating bone chips about my spinal cord at the level where Defendant had damaged my spinal cord."
Appellant also admitted, in another interrogatory answer, that his "[n]umbness [had] been constant since" the surgery performed on him by respondent in 1993.
After, again, substantial briefing on both sides, a hearing on respondent's motion for summary judgment was held on August 14, 2009, with appellant again appearing in pro per before the court (the Honorable Charlotte Woolard). After oral argument by both sides, the court sustained its tentative opinion and granted respondent's motion for summary judgment.
Much of this briefing pertained to respondent's objections to a declaration of appellant on the ground that it violated the court's prior order precluding appellant from offering any written testimony relating to the injuries allegedly suffered as a result of the 1993 operation, and also objecting to the content of that declaration on other evidentiary grounds. The trial court sustained respondent's objections, but also found that, even if the assertions made in appellant's declaration were to be considered, they did not raise triable issues of material fact regarding the triggering of the applicable statute of limitations.
Judgment was entered in favor of respondent on September 3, 2009. He then filed a memorandum of costs, asking for $1,090. Appellant's motion to strike or tax these costs was denied by the trial court on October 28, 2009.
Appellant filed a timely notice of appeal on November 10, 2009.
III. DISCUSSION
A. Introduction
Appellant's briefs to us—all filed in pro per—raise several issues he contends are subject to review. Most of these involve procedural matters concerning the trial court's rulings regarding continuances, denials of further continuances, the evidentiary sanctions order, his motion for reconsideration of the same, the effect of the evidentiary sanctions imposed on him, the trial court's award of costs, etc. As we will note at the conclusion of our discussion, and as appellant concedes, all of these issues are subject to an abuse of discretion standard of review. But, most important to our review of this appeal is whether the trial court was correct in granting summary judgment on the basis that appellant's responses to respondent's interrogatories established that when appellant filed his first complaint for medical malpractice in December 2004, the statute of limitations had run regarding the operation performed on him by respondent 11 years earlier, i.e., in December 1993. We will thus discuss that issue first. B. Summary Judgment Was Properly Granted Because of the Statute of Limitations
Contrary to appellant's contention in his opening brief, a summary judgment order entered by the superior court is reviewed de novo, not for abuse of discretion. More importantly, contrary to appellant's contentions, we find that summary judgment was properly granted in this case.
Appellant concedes this point in his reply brief.
As noted in our summary of the facts, appellant was operated on by the respondent doctor in December 1993 but did not file his malpractice action against him until 11 years later, in December 2004. And then, despite repeated orders to show cause issued by the trial court, a summons and complaint were not served on respondent until three years after that, on December 3, 2007. Thus, 14 years elapsed between the alleged medical malpractice and the service of the complaint upon the respondent.
Perhaps significantly, during this 14 years appellant (1) suffered "exacerbated . . . neck and upper back pain" because of a June 1996 automobile accident in which he was involved, and (2) underwent further spinal surgery conducted by another surgeon in 1997.
The applicable statute of limitations in a case such as this is, as appellant concedes, Code of Civil Procedure section 340.5, which provides in relevant part: "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence."
All subsequent statutory references are to the Code of Civil Procedure unless otherwise noted.
As numerous authorities make clear, both the one-year and the three-year periods specified in this statute must be satisfied, i.e., the action must be filed within one year after the plaintiff discovers his injury and three years after the date of the injury, unless one of the specified tolling provisions applies. (See, e.g., Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, 482 & 486-487; Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1544-1551 (Garabet); McNall v. Summers (1994) 25 Cal.App.4th 1300, 1311; Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 757-763 (Hills); see also authority collected in 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, §§ 578-581.)
Several of these opinions sum up the applicable law concisely. Thus, the Garabet court stated: "The maximum limitations period for a medical malpractice action is three years from the date of injury, tolled for fraud, intentional concealment, or the presence of nontherapeutic and nondiagnostic foreign bodies only." (Garabet, supra, 151 Cal.App.4th at p. 1545.) And the Hills court held similarly when it wrote: "The three-year limitations period of section 340.5 provides an outer limit which terminates all malpractice liability and it commences to run when the patient is aware of the physical manifestation of [his] injury without regard to awareness of the negligent cause. . . . [¶] . . . [S]ection 340.5 now places an outer limit which terminates all malpractice liability once three years have passed from the date of injury." (Hills, supra, 152 Cal.App.3d at pp. 760 & 761.)
The limitations of action issue is manifest from the record before us because of the date of the filing of appellant's complaint, December 2004, and the date it alleges the operation conducted by respondent doctor occurred, December 1993. In those very same initial allegations, appellant attempted to "plead around" the statute of limitations by alleging that he "did not discover the true facts until within one year of the filing of this complaint."
As the trial court held, however, this attempt to avoid the statute of limitations (and the strict application of it in the authority cited above) was undermined by the specific admissions of appellant in his interrogatory answers filed in August 2008. Interrogatory No. 9 posed by respondent's counsel asked appellant to: "State the exact date on which you discovered the 'true facts' as alleged in paragraphs GN-1 and IT-1 of your complaint." Appellant responded, first, that "I do not understand this question" but then proceeded to demonstrate that he did by responding, in part and as noted above: "On or about April 1, 1996, I learned that the surgical wound was draining two years following the surgery: a granuloma had formed in the surgical wound at the site where defendant had belatedly removed an overlooked suture. [¶] On or sometime after April 18, 1997, I learned that Defendant had surgically damaged my spinal cord. [¶] On or about July 31, 1997, I learned that there were free-floating bone chips about my spinal cord at the level where Defendant had damaged my spinal cord."
Referring, of course, to the "General Negligence" and "Intentional Tort" allegations of appellant's complaint.
On or about the same date, appellant also responded to another interrogatory posed by respondent that "[n]umbness [had] been constant since" the surgery performed on him by respondent in 1993.
Based on these specific admissions, the trial court granted respondent's motion for summary judgment. In so doing, it wrote: "Plaintiff's response to special interrogatory number nine states that on April 1, 1996 he learned that the surgical wound was draining two years following the surgery: a granuloma had formed in the surgical wound at the site where defendant had belatedly removed an overlooked suture. On or sometime after April 18, 1997, plaintiff learned that defendant had surgically damaged plaintiff's spine. On or about July 31, 1997, plaintiff learned that there were free-floating bone chips about his spinal cord at the level where defendant had damaged plaintiff's spinal cord. In his response to form Interrogatory 6.3, plaintiff describes constant numbness since the surgery. Plaintiff did not file this lawsuit until December 3, 2004, well beyond the limitations period that commenced, at the latest, July 31, 1997. Plaintiff fails to raise a triable issue of material fact. Plaintiff's declaration not properly before the court because Commissioner Slavit's order of May 20, 2009 precludes plaintiff's testimony. Objection to Plaintiff's declaration sustained. Even if considered, plaintiff's declaration does not raise a triable issue of fact regarding the statute of limitations or tolling. On July 31, 1997, at the latest, plaintiff had notice or information of circumstances to put a reasonable person on inquiry. See Jolly [v.] Eli Lilly & Co. (1988) 44 Cal.3d 1103 [(Jolly)]." (Italics added.)
This ruling by the trial court totally rebuts appellant's statement in his opening brief that "[t]he trial court did not find that there was any evidence that Trembath knew of or suspected his injury prior to its discovery in December, 2003, after which he timely filed suit." In fact, it did indeed find such evidence, and listed it quite explicitly.
We have no problem in concluding that the trial court was correct in this holding. The law has long been clear that admissions made in discovery by a party can be used, indeed often decisively, against that party in a summary judgment motion. Thus, in Prilliman v. United Airlines, Inc. (1997) 53 Cal.App.4th 935, 961, the court cited an earlier opinion by our Supreme Court in stating: "[A] line of cases has developed the rule that where a party in discovery has made an admission which justifies summary judgment in favor of his opponent, he cannot attempt to defeat the summary judgment motion by submitting a declaration contradicting the admission. As explained by the court in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22: 'Moreover, when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirements applicable in a normal case [i.e., liberal construction of counteraffidavits to summary judgment motion] are relaxed or altered in their operation. . . . [¶] The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts [citation] admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.' [Citations.]"
And, finally, as a unanimous Supreme Court wrote in the leading case of Jolly, supra, 44 Cal.3d at p. 1112: "While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper."
To apply this law to the facts before us, the four admissions made by appellant via his interrogatory answers, quoted above, are binding unless other evidence was adduced by appellant rebutting them. Put another way, the law governing summary judgments makes clear that, when admissions such as the four quoted above are put into the record, the burden shifted to appellant to introduce affirmative evidence rebutting them.
Specifically, section 437c, subdivision (p)(2), provides: "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto."
Appellant's pleadings in opposition to respondent's motion for summary judgment fail to establish such a triable issue of material fact. For example, in his memorandum of points and authorities in opposition to respondent's summary judgment motion, appellant stated: "The one year statute of limitations clock in the present case did not begin until both the significant economic damage from the negligence and the negligent cause of that damage were both discovered by the Plaintiff, on December 8, 2003." But, six pages later in the same document appellant states (referring to one of his interrogatory admissions): " Plaintiff first learned that Defendant might have damaged his spinal cord when Plaintiff's MRI of April 1, 1997, showed scarring on his spinal cord near the area of the 7" surgical site."
In the same set of pleadings, appellant labels all of respondent's "Undisputed Material Facts" as being "Undisputed, except as to Plaintiff's Declaration, [¶] 8.)" But an examination of the lengthy (almost three single-spaced pages) of paragraph 8 of appellant's responsive declaration shows that it does not come close to suggesting, much less establishing, that he did not discover the possible medical malpractice of respondent until 2003. Indeed, not only is this year not mentioned in that critical (per appellant himself) portion of his responsive declaration, no date regarding appellant's discovery of possible malpractice is stated or even hinted at.
The only other date mentioned in this pleading is the year 1997, which appellant alleges is the year "[d]efendant's expert witness . . . discovered this . . . ."
Appellant's opposition to the summary judgment motion thus fails to satisfy to clear tests laid down by the Jolly court: "Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. . . . A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Jolly, supra, 44 Cal.3d at pp. 1110-1111.) Just so here.
In his reply brief, appellant suggests that the doctrine of res ipsa loquitur applies in a case such as this. However, we find no mention of such a theory—nor a citation to the governing statute, Evidence Code section 646—in either appellant's opposition to the motion for summary judgment in the trial court or in his opening brief to us. This argument is, thus, waived.
In his memorandum in opposition to the summary judgment motion, appellant argues that respondent doctor engaged in "intentional concealment" and made "fraudulent representations" to Plaintiff, but no evidence of anything along these lines is provided, only personal speculation by appellant. Additionally, appellant did not even attempt to produce expert medical evidence in support of his allegations of malpractice. (See, regarding the usual necessity for such in medical malpractice cases: Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926, 935; Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542-1543; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) C. Appellant's Other Claims of Error
Included in the voluminous record provided us are apparently copies of two medical reports made by unnamed and unidentified doctors concerning appellant's treatments and diagnosis in 2007. But, aside from the non-identification of the authors, (1) appellant never provided any authentication of these documents, (2) they were never cited in opposition to the motion for summary judgment, and (3) they do not suggest any medical malpractice by respondent in 1993. Several of these points also apply to the unauthenticated 40-plus pages of 1993-1997 medical records attached as exhibits to appellant's opposition to the motion for summary judgment.
In his briefs to us, appellant asserts several other errors were made by the trial court. Notwithstanding the repeated references to these claims in appellant's briefs, in fact there are only three, namely: (1) the trial court's order imposing evidentiary sanctions on appellant for his failure to appear for his deposition and other alleged discovery abuses; (2) its denial of appellant's request for a continuance of the hearing on respondent's motion for summary judgment; and (3) its order denying his motion to tax or strike costs. Appellant correctly concedes that all of these issues are governed by an abuse of discretion standard of review.
We will, hereafter, discuss each of these issues separately. But, first of all, the substantial hurdle an appellant must overcome to show an abuse of discretion regarding such procedural rulings by a trial court needs to be noted. In Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882, our colleagues in the Sixth District aptly summarized this legal hurdle thusly: "Abuse of discretion is a deferential standard of review. [Citation.] Under this standard, a trial court's ruling 'will be sustained on review unless it falls outside the bounds of reason.' [Citation.] We could therefore disagree with the trial court's conclusion, but if the trial court's conclusion was a reasonable exercise of its discretion, we are not free to substitute our discretion for that of the trial court."
We find no such abuse here for several reasons. First of all, it is important to note the deference repeatedly accorded appellant by the trial court because of his in pro per status and, also, because of his apparent disability. As noted, the trial court clerk's office issued 12 separate orders to show cause because of appellant's failure to serve respondent for three years after the filing of his original complaint and the consequent issuance of a summons. (See ante, p. 2.) As repeatedly recited in those orders, under the Local Rules of the San Francisco Superior Court, a case may be dismissed or sanctions imposed on a plaintiff for failure to effect timely service of a summons and complaint after an action is filed. (See, especially, Super. Ct. SF County, Local Rules, rule 3.3 [regarding the filing of applications for extensions of time to serve a complaint].) Based on appellant's repeated representations that he was still suffering medically and was trying "to retain an attorney," the trial court declined many times to exercise either of these options.
See also, to the same general effect, California Rules of Court, rule 3.110(b), allowing 60 days "after the filing of the complaint" for such to be "served on all named defendants and proofs of service . . . filed with the court . . . ."
Secondly, and as also noted above, on April 8, 2008, the trial court denied respondent's motion, brought under sections 583.410 and 583.420, subdivision (a)(1), asking that the court dismiss the action because of appellant's long delay in effecting service on respondent. Based on the language of those statutes, the trial court clearly could have exercised its discretion and done so, but opted not to because of appellant's personal circumstances.
Thirdly, and again as noted above, in May 2009, the trial court denied respondent's motion for terminating sanctions to be imposed because of appellant's failure to appear for his noticed deposition on April 27, 2009. Instead, it imposed the evidentiary sanctions alternatively requested by respondent.
These three actions by the trial court, considered both individually and collectively, make clear that it was repeatedly very tolerant of appellant's delays in prosecuting his action and following the procedural and discovery rules applicable to all civil actions, whether pursued via an attorney or in pro per.
Further and finally, we find no abuse of discretion in any of the three specific trial court orders appellant disputes.
First, regarding the much-briefed and argued sanctions issue, this controversy pertained to appellant's combination of both delay and refusals to respond to discovery initiated by respondent, and covered a period of 10 months, i.e., from September 2008 to July 2009. During this time, and as outlined in more detail in our statement of facts: (1) appellant contended he could not appear for his first-noticed deposition on September 3, 2008, because he was still trying to retain counsel and, as a result, that date was postponed, (2) when the deposition was renoticed for March 19, 2009, appellant again resisted, arguing that he had been prevented from obtaining legal counsel because respondent had not responded to his interrogatories "regarding Defendant's insurance liability coverage," (3) appellant specifically failed to appear on the date his deposition was again noticed (April 27, 2009), (4) as a result of all of this, respondent filed a motion for terminating or other sanctions against appellant, (5) the trial court (Commissioner Slavit) denied respondent's request for terminating sanctions, but granted both monetary sanctions against appellant and, more importantly, precluded appellant from offering evidence in connection with "any allegation or issue raised in this action" or "offering in evidence any documents, records, or other writings that have not already been produced to [respondent] in unredacted form," and then (6) denied appellant's motion to reconsider its sanctions order.
As already noted, in his briefs to us, appellant argues that the court's evidentiary sanctions order was an abuse of discretion, because, among other things, it effectively precluded him from responding to respondent's motion for summary judgment. For several reasons, we disagree and conclude that there was no abuse of discretion in the trial court's order granting evidentiary sanctions.
Appellant failed to appear for his deposition not once, but twice, with the second non-appearance being after the trial court had specifically directed, via its order of April 15, 2009, that he appear for his deposition on or before May 1, 2009. In response to respondent's motion for either terminating, evidentiary, and/or monetary sanctions, the trial court denied terminating sanctions and imposed rather limited evidentiary sanctions and minor monetary sanctions.
We characterize the evidentiary sanctions as rather limited because, contrary to the arguments of appellant in his briefs to us, the order in question simply precluded appellant from offering (1) "his testimony—either oral, or in the form of written declaration or affidavit—in connection [with] any allegation or issue raised in this action" or (2) "any documents, records, or other writings that have not already been produced to defendant in un-redacted form." Thus, the evidentiary sanctions order did not preclude appellant from offering evidence from (1) expert medical witnesses, (2) hospital or medical staff who had observed the 1993 operation and/or respondent's post-operation treatment of appellant, (3) persons who had heard of or read any reports written by respondent (or anyone else) concerning the operation or respondent's post-operation treatment of appellant, (4) unredacted documents already produced to respondent in response to discovery requests, etc. Thus, appellant's argument to us that the evidentiary sanctions order would, as interpreted by the trial court, have prohibited him "from making any motion, filing any opposition, or enforcing any subpoena or order that would otherwise have been his due right as a party to an action in the State of California and a citizen of the United States" borders on the absurd.
In any event, section 2023.030, subdivision (c), makes clear that such an order as the one involved here is entirely appropriate when there have been several refusals to engage in the discovery authorized by the law. That section provides: "The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence."
The trial court's order of May 20, 2009, is entirely consistent with this statute, and especially does not constitute an abuse of discretion because (1) it denied the relief most sought by respondent, i.e., terminating sanctions, (2) the relief it granted was limited to oral testimony by appellant or his "written declaration or affidavit—in connection [with] any allegation or issue raised in this action."
In this court's decision in Juarez v. Boy Scouts of America (2000) 81 Cal.App.4th 388 (Juarez), we summarized the law applicable in the circumstances present both here and in that case (where the plaintiff had provided nonresponsive and evasive answers to interrogatories, leading the trial court to impose evidentiary sanctions under section 2023). We said: "Our Supreme Court recently examined the broad range of sanctions set out in [section 2023] for a misuse of the discovery process: 'The sanctions under . . . section 2023 are potent. They include monetary sanctions, contempt sanctions, issue sanctions ordering that designated facts be taken as established or precluding the offending party from supporting or opposing designated claims or defenses, evidence sanctions prohibiting the offending party from introducing designated matters into evidence, and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party.' (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) 'In choosing among its various options for imposing a discovery sanction, a trial court exercises discretion, subject to reversal only for manifest abuse exceeding the bounds of reason. [Citation.]' (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988; see also Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [discovery sanctions reversible only for arbitrary, capricious, or whimsical action]; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431-432 [complaining party must show how and why court's action constituted abuse of discretion].)" (Juarez, supra, 81 Cal.App.4th at pp. 388-389; see also Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214-1224.)
Under this law, clearly the limited evidentiary sanctions imposed by the court's order of May 20, 2009, did not constitute an abuse of discretion.
Second, regarding the trial court's order denying appellant's request for a continuance of the hearing on respondent's motion for summary judgment, it should be noted that respondent filed that motion on May 29, 2009. Appellant did not file his opposition to it until August 10, 2009. In the interim, appellant filed numerous pleadings regarding the sanctions order imposed by the trial court on May 20, 2009, and asked for and received a one-week extension of time from the court to file his opposition to the summary judgment motion. Under all these circumstances, the trial court's denial of an additional extension of time for the filing of appellant's opposition to respondent's summary judgment motion was not an abuse of its discretion.
Third and finally regarding the alleged abuse of discretion issues, we also find no such abuse in the trial court's order of March 3, 2010, denying appellant's motion to strike or tax the costs claimed by respondent—a total of $1,090. In the first place, the record before us does not contain a copy of respondent's "Memorandum of Costs" allegedly filed on September 8 or 9, 2009. Appellant's September 28, 2009, motion to strike or tax costs listed only six items, four of them being "motion filing costs" for various and sundry motions filed by respondent during the months-long disputes and consequent delays during the discovery phase of this action, and one of them (a $250 "BASF cost") being inexplicable, especially absent the cost bill itself. Especially because of (1) that absence and (2) the fact that appellant's three-paragraph argument in his opening brief to us regarding the cost bill does not focus on or specifically contest any one of the six contested costs, we again find no abuse of discretion by the trial court regarding this order.
In his reply brief, appellant does not reargue the trial court's order denying his motion to tax or strike costs, but only cites it as one of several orders this court might deem "appropriate to review."
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IV. DISPOSITION
The judgment is affirmed.
Haerle, Acting P.J. We concur: Lambden, J. Richman, J.