Thursday, April 14, 2005

Mileikowsky v. Tenet Healthsystem (Cal. Ct. App. - April 6, 2005)

I was on board for the opinion by Justice Curry in this case until the third-to-last paragraph. Then he lost me.

One can easily understand why Justice Curry reaches the result he does. Plaintiff apparently isn't a big fan of providing discovery. Defendant files five motions to compel and requests terminating sanctions five times, and, in the end, finally obtains them. Plaintiff clearly isn't playing the discovery game properly. So after the dozen pages in which Justice Curry recounts plaintiff's improprieties during discovery, he concludes that the order for terminating sanctions was properly granted.

(Tangent. A google search reveals that the plaintiff appears to be an even more interesting character than Justice Curry's opinion reflects. He's a medical doctor who apparently was not only booted out of the hospital at issue in this case, but also had his privileges revoked at Cedars-Sinai. He has filed a lawsuit (which looks like it's still being litigated) against the Medical Board of California, which -- for various reasons -- ordered him to take a psychiatric examination. Plus it looks like he got scammed (allegedly, of course) for $275,000 by a Belgian who said he was an attorney and investment banker but wasn't. So it looks like Gil Mileikowsky has at least had an interesting life.)

Back to the merits. Okay, so the guy plays very, very fast and loose during discovery. So I agree with Justice Curry that he's a guy who's lawsuit is begging to be dismissed for discovery abuse. But -- as we all know -- you can only impose terminating sanctions for violating an order. And that's the problem. Admittedly, plaintiff tries to violate an order. The parties enter into a stipulation in January 2002 in which plaintiff agrees to serve supplemental discovery responses by February 15, 2002, and he fails to do so. That's the "order" that plaintiff allegedly violates. But the problem is that -- for whatever reason -- that stipulation was neither submitted to the court nor ever signed by a judicial officer. Which means it isn't an order.

Justice Curry responds that the stipulation is still binding because it's signed by the parties. True enough. It's a contract. It's binding. I follow him so far. But it's still not an order. And it's only the violation of a judicial "order" that permit the imposition of termination sanctions under Sections 2030 and 2031. (Parenthetically, I'm not even sure that it's even a binding contract. Typically, signature by the court is a condition precedent to an effective stipulation. If the judge doesn't sign, I'm not bound. But one need not make this move to find Justice Curry's opinion wanting. Whatever might be said, the agreement of the parties isn't a judicial order.)

So I understand why Justice Curry wants to find the way he does. But he just can't. The sanctions here, based as they were on the entry of a terminating sanction, should have been reversed.

(One final digression. The parties are represented by competing beach-loving counsel. Plaintiff's attorney is Roger Diamond, an attorney in Santa Monica and graduate of UCLA and UCLA Law. Defendants' counsel are Mark Kawa -- an attorney on PCH in Redondo Beach (and a USC Law graduate) -- and Joseph Cilic, an attorney whose office is off of Wilshire and a UCLA Law grad. Here, Redondo and Wilshire beat Santa Monica. Even though Santa Monica is, as a matter of doctrine, technically right.)