California Court of Appeal May 4, 2016 No. D067214Unpublished
Filed 5/4/16 Patton v. Martins CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAMES PATTON, D067214
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2013-00044219- CU-PO-CTL) DONALD MARTINS et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Reversed.
Russ Bolin for Plaintiff and Appellant.
Horton, Oberrecht, Kirkpatrick & Martha, Kimberly S. Oberrecht and Nathaniel J.
Michels for Defendants and Respondents.
In general, the law favors resolving cases on their merits. As we explain more
fully, in this case, notwithstanding plaintiff and appellant James Patton's failure to appear
for agreed independent medical examinations, he should be given an opportunity to have
the merits of his case against defendant and respondent Donald Martins1 determined in
the trial court. However, we emphasize that in order that cases be resolved on their
merits, every litigant must participate in an orderly manner in the processes of our courts.
When we, or the trial court, unduly indulge a litigant's consistent disregard for those
processes in any particular case, we prejudice not only the ability of the trial court to
2 There is no opposition to the motion for reconsideration in the record on appeal, and we have been unable to find any indication in the record with respect to whether the trial court ever reached the merits of Patton's motion for reconsideration and formally ruled on it. 5
Although Code of Civil Procedure section 2032.240 subdivision (d)3 expressly
permits a terminating sanction when a party fails to respond to a demand for an IME and
is then ordered to respond to the IME, the express prerequisite of an order in that
situation has no application here. The record shows that Patton's lawyer in fact did
respond to Martins's demand for the IME's, and Martins's motion was based not on a
failure to respond to the demand but on Patton's failure to appear for the IME's on the
agreed dates. In that circumstance, the trial court may rely on its inherent authority over
proceedings in imposing sanctions, including terminating sanctions.
Here, the record shows that from the time of the scheduled IME's in June 2014
until the eventual hearing on the motion four months later, in October 2014, Patton
3 Code of Civil Procedure section 2032.240 states: "(a) If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand. The court, on motion, may relieve that plaintiff from this waiver on its determination that both of the following conditions are satisfied: "(1) The plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230. "(2) The plaintiff's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. "(b) The defendant may move for an order compelling response and compliance with a demand for a physical examination. "(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and compliance with a demand for a physical examination, 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. "(d) If a plaintiff then fails to obey the order compelling response and compliance, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010)." 6
largely absented himself from his responsibilities as a litigant. Patton did not simply fail
to show up for the IME's, but he failed to conduct himself in a manner which would have
permitted that error to be remedied: He failed to maintain communication with his first
counsel, failed to obtain new counsel when his first counsel withdrew and failed to
provide a timely opposition to Martins's motion. Given the totality of these
circumstances, we entirely comprehend the trial court's frustration with Patton and its
legitimate concern that Patton had deliberately ignored his responsibilities as a litigant.
II
Patton also argues that under Code of Civil Procedure section 2032.220
subdivision (d), Martins was required to provide him 30 days' notice of the IME's.
However, the record shows that Patton's lawyer made no objection to the timing of the
IME's, and Patton himself never filed a timely opposition raising the issue. Thus, Patton
waived any objection based on the lack of notice.
III
Although we do not adopt Patton's contention that an order requiring discovery is
a prerequisite to dismissal as a discovery sanction, or that he was not given proper notice
of the IME's, we do nonetheless find that dismissal in this case was an abuse of
discretion. The law is clear that dismissal as a sanction should be imposed only as a last
resort and only when other sanctions have been considered and found ineffective. (Del
Junco v. Hufnagel, supra, 150 Cal.App.4th at p. 799.) "The purpose of the discovery
statutes is to enable a party to obtain evidence under the control of his adversary in order
to further the efficient and economical disposition of a lawsuit. . . . [¶] [Sanctions]
7
should be appropriate to the dereliction, and should not exceed that which is required to
protect the interests of the party entitled to but denied discovery. Where a motion to
compel has previously been granted, the sanction should not operate in such a fashion as
to put the prevailing party in a better position than he would have had if he had obtained
the discovery sought and it had been completely favorable to his cause. [Citations.] [¶]
The sanction of dismissal or the rendition of a default judgment against the disobedient
party is ordinarily a drastic measure which should be employed with caution." (Deyo v.
Short of dismissal, a host of alternative means of sanctioning willful disobedience
of discovery obligations are available: attorney fees and expenses may be awarded to the
party seeking discovery; when an order to provide discovery has been disobeyed, the
disobedience may be punished as contempt; the court may issue an order that certain
designated facts be taken as established for the purposes of the action; the court may
issue an order refusing to allow the disobedient party to support or oppose designated
claims or defenses or an order prohibiting him or her from introducing certain documents,
things or items of testimony; the court may strike pleadings or parts thereof; or the court
may stay the proceedings until its order is obeyed. (Deyo v. Kilbourne, supra, 84
Cal.App.3d at pp. 791-792.)
Here, two circumstances support our conclusion that the ultimate sanction of
dismissal was not warranted: Although Patton's failure to obtain counsel as directed by
the trial court and his failure to timely file an opposition to Martins's motion certainly
support an inference of willfulness on his part, given his apparent difficulty
8
communicating with counsel, the issue of willfulness was not fully and directly litigated,
and the subject of the requested discovery—Patton's psychiatric injuries—was only a
portion of his case against Martins and did not go to Martins's liability to Patton or the
extent of any other injuries Patton may have suffered.
Accordingly, we reverse the order dismissing Patton's complaint.
DISPOSITION
The order imposing terminating sanctions and dismissing Patton's claims against
Martins is reversed. With respect to Patton's prior conduct, on remand, the trial court, if
it finds that Patton's failure appear for the IME's was willful, may impose sanctions, short
of dismissal, which are related to and proportional to any prejudice suffered by Martins.
Costs on appeal are awarded to Patton.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
9
AI Brief
AI-generated · verify before citing
Holding. The trial court abused its discretion by imposing the terminating sanction of dismissal because the sanction was not a last resort and less drastic alternatives were available to address the plaintiff's discovery noncompliance.
Issues
Whether a trial court must issue a prior order compelling discovery before imposing terminating sanctions for a failure to appear at an independent medical examination.
Whether the trial court abused its discretion by dismissing the plaintiff's complaint as a terminating sanction for discovery noncompliance.
Disposition. reversed
Quotations verified verbatim against the opinion
“The law is clear that dismissal as a sanction should be imposed only as a last resort and only when other sanctions have been considered and found ineffective.”
“The sanction of dismissal or the rendition of a default judgment against the disobedient party is ordinarily a drastic measure which should be employed with caution.”
“we reverse the trial court's dismissal of plaintiff's complaint and remand for further proceedings”