Jolley v. SutterCoastHospital

Filed 10/19/07 Jolley v. Sutter Coast Hospital CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Ian Zimmerman, attorney for plaintiff Greg Jolley, appeals from a trial court order imposing discovery sanctions in the amount of $9,562.89. We affirm.

Background

The underlying lawsuit is a medical malpractice action relating to treatment received by plaintiff following a bicycle accident. His treating physician at the emergency room at Sutter Coast Hospital was defendant Sara Kossuth, M.D. Plaintiff was represented in the trial court by Attorney Zimmerman.

In May 2005, plaintiff served defendant Kossuth with two sets of special interrogatories. Kossuth responded to the interrogatories in July 2005. In November 2005, plaintiff filed a motion to compel further responses. Kossuth sent a meet and confer letter regarding both plaintiffs motion and Kossuths demand for the discovery due from plaintiff to Kossuth. In January 2006, plaintiff took the motion off calendar based on Kossuths agreement to provide supplemental responses; plaintiff promised to provide verified responses to Kossuths discovery requests.

On February 3, 2006, plaintiff noticed Kossuths deposition for February 22 in Los Angeles. The deposition was not made contingent on receipt of Kossuths supplemental responses to plaintiffs special interrogatories.

On February 8, 2006, after several delays, Kossuths counsel advised appellant Zimmerman that the supplemental responses would be provided the week of February 20th. Zimmerman did not object.

At the end of the business day on Thursday, February 16, 2006, Zimmerman faxed a letter to Kossuths counsel stating that he expected to receive the supplemental responses the next day. The next day, Zimmermans office confirmed the deposition scheduled for Wednesday, February 22. Again, there was no indication that the deposition was contingent on receipt of the supplemental responses.

Kossuths counsel traveled from the San Francisco area to Los Angeles in anticipation of the deposition scheduled for February 22, 2006. Around 5:10 p.m. on February 21, Zimmerman faxed a letter to Kossuths counsel threatening to cancel the next days deposition if he did not receive the supplemental responses. Kossuths counsel pointed out that Zimmerman had been informed that the supplemental responses would be provided the week of February 20th and that the deposition had not been made contingent on receipt of the supplemental responses. Kossuths counsel indicated that they would seek sanctions against Zimmerman if the deposition were canceled. Zimmerman canceled the deposition.

On Friday, February 24, 2006, Kossuth provided unverified supplemental responses to plaintiffs special interrogatories.

On March 27, 2006, plaintiff filed a motion to compel further responses to his special interrogatories. On May 8, Kossuth filed a motion for sanctions against plaintiff and Zimmerman. The trial court denied plaintiffs motion to compel as untimely and for failure to file a separate statement, as required by California Rules of Court, former rule 335(a)(2).[1] The court issued sanctions against Zimmerman in the amount of $6,292.89 for the cancellation of the Kossuth deposition, pursuant to Code of Civil Procedure sections 2025.430 and 2023.010.[2] The court also issued sanctions against Zimmerman in the amount of $3,270, pursuant to section 2030.300, subdivision (d).

Discussion

I.                    Sanctions for Cancellation of the Deposition

Zimmerman contends that the trial court abused its discretion in imposing sanctions for cancellation of the deposition on February 22, 2006.

Section 2025.430 provides If the party giving notice of a deposition fails to attend or proceed with it, the court shall impose a monetary sanction . . . against that party, or the attorney for that party, or both, and in favor of any party attending in person or by attorney, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Zimmerman contends that he acted with substantial justification and that imposition of sanctions was unjust because the requested discovery was appropriate, it was reasonable for him to want the supplemental responses before the deposition, Kossuths counsel must have known that he wanted the responses before the deposition, and Kossuths counsel could have provided the responses before the deposition. The reasonableness of the requested discovery and Zimmermans desire to have supplemental responses before the deposition is not at issue. The problem for Zimmerman is that he failed to unambiguously communicate his expectation to Kossuths counsel until the end of the day on February 21, the day before the deposition. Because Zimmerman was told that the supplemental responses would be served the week of February 20th, it was incumbent on him to tell Kossuths counsel with sufficient advance notice that the deposition would not go forward if he did not have the responses before February 22.

Counsel for Kossuth did not act unreasonably in presuming that the deposition would move forward without the supplemental responses, absent a timely and clear communication to the contrary from Zimmerman. In these circumstances, it was not an abuse of discretion to shift the costs incurred by Kossuth to Zimmerman. (See Rosen v. Superior Court for Los Angeles County (1966) 244 Cal.App.2d 586, 595-596 [trial court erred in declining to impose sanctions against party that failed to notify opposing counsel of postponement of deposition].) The trial court did not abuse its discretion in concluding that Zimmerman lacked substantial justification for canceling the deposition and in concluding that no other circumstance made the imposition of sanctions unjust.[3]

II.                 Denial of the Motion to Compel

Zimmerman contends that the trial court abused its discretion in denying plaintiffs motion to compel further answers to plaintiffs special interrogatories. The trial court denied plaintiffs motion on two bases. First, the court concluded that the motion was untimely under section 2030.300, subdivision (c). Second, the court concluded that plaintiff had failed to provide the separate statement required under former rule 335(a)(2). We conclude that the second basis is sufficient to uphold denial of the motion and do not consider the issue of timeliness.

At the time plaintiff filed the motion to compel, he was required under former rule 335 to provide a separate statement with his motion to compel. According to former rule 335(c), A separate statement is a separate document filed and served with the discovery motion that sets forth all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement shall be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material shall not be incorporated into the separate statement by reference.[4]

Zimmerman concedes that he did not file a separate statement with the March 2006 motion to compel. But he contends that the motion did not violate the Rules of Court because the other moving papers provided all the information necessary to understand each discovery request and all the responses to it that are at issue. (Former rule 335(c).) That is irrelevant. Usually the moving papers viewed as a whole will provide the necessary information. The purpose of the requirement of a separate statement is to provide a single document which is full and complete so that no person is required to review any other document in order to determine the full request and the full response. (Ibid.)

Because plaintiff failed to comply with former rule 335, the trial court did not abuse its discretion in denying the motion to compel. Neither did the court abuse its discretion in issuing sanctions against Zimmerman. Section 2030.300, subdivision (d) provides that, [t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes . . . a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Zimmerman fails to show that imposition of the sanctions was unjust or that he acted with substantial justification in disregarding the requirement of a separate statement.

Disposition

The trial court order is affirmed.

GEMELLO, J.

We concur.

SIMONS, Acting P.J.

NEEDHAM, J.

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[1] California Rules of Court, former rule 335 was subsequently renumbered rule 3.1020, with minor changes to the text. All further rules references are to the California Rules of Court.

[2] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[3] Because the trial court properly issued sanctions under section 2025.430, we need not consider whether it was also proper to issue sanctions for misuse of the discovery process pursuant to section 2023.010.

[4] Former rule 335(c) further specified, The separate statement shall include [] (1)the text of the request, interrogatory, question, or inspection demand; [] (2)the text of each response, answer, or objection, and any further responses or answers; [] (3)a statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute; [] (4)if necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it; [] (5)if the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and [] (6)if the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them shall summarize each relevant document.