Filed 4/23/15 Cain v. Sansum Clinic CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


RICHARD L. CAIN,                                                              2d Civil No. B257463
                                                                            (Super. Ct. No. 1402957)
     Plaintiff and Appellant,                                                (Santa Barbara County)

v.

SANSUM CLINIC et al.,

     Defendants and Respondents.



                   Plaintiff, in propria persona, brought an action against two hospitals
alleging they caused biomedical devices to be implanted in his body. After the trial court
imposed discovery sanctions on plaintiff, the hospitals moved for summary judgment.
The trial court granted the hospitals' motion. We affirm the ensuing judgment.
                                                         FACTS
                   Richard L. Cain sued 34 health care providers for injuries resulting from
the alleged secret and unconsented implantation into his body of what he describes as
"experimental radiofrequency controlled and powered millimeter and other sized
biomedical devices, which are comprised of Nanotechnology." He claims the devices
receive and transmit radio signals, and cause him insomnia and other physical ailments.
Among the defendants are the Goleta Valley Cottage Hospital and the Santa Barbara
Cottage Hospital (hereinafter collectively "Hospital").
               Cain appeared and answered questions at one deposition. Thereafter, he
repeatedly failed to comply with the defendants' discovery demands. Cain's failure to
comply included numerous failures to appear for a second deposition.
               Defendants moved for discovery sanctions including termination and the
exclusion of evidence. The Hospital joined in the motion. Cain did not appear or
otherwise respond to the motion.
               The court found: "The motions before the court are interrelated, and
indicative of a persistent problem in this litigation, i.e., plaintiff's continuing failure to
timely engage in and respond to legitimate discovery sought by the many defendants he
has forced into this litigation. While the Court is aware of the challenges involved in
prosecuting a case in pro per, and while the Court has at every juncture attempted to give
plaintiff the benefit of the doubt and advise him of the requirements and obligations that
are necessary parts of being allowed to pursue litigation, the lessons do not seem to have
taken hold. Plaintiff has repeatedly failed to respond to authorized discovery as required
by the Civil Discovery Act (CCP § 2016.010, et seq.), forcing defendants to seek this
court's assistance by moving to compel him to provide responses. The Court long ago
lost track of how many times it has had to order plaintiff to provide responses to
discovery. The Court has reached the limit of its tolerance of plaintiff's repeated failures
to comply with his discovery obligations. After instructing plaintiff on so many
occasions with respect to his discovery obligations, the Court can only conclude that any
further failures to participate in discovery are willful and deliberate, and do not result
from any lack of understanding of the process."
               The court did not grant termination or evidentiary sanctions. Instead, the
court ordered the parties to meet and agree on a date for Cain's second deposition. Cain
met with the defendants and agreed to be deposed on February 7, 2014. The court so
ordered. Cain did not appear.
               The Hospital made an ex parte motion for further ruling on discovery
sanctions. Cain did not oppose the motion. The court ordered that Cain is precluded



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from presenting evidence that the Hospital was negligent, that it is liable to Cain or that
Cain has suffered any damages.
              Thereafter, the Hospital moved for summary judgment. The Hospital
produced evidence that x-rays and CT Scans do not show any biomedical devices
implanted in Cain's body. Even if there were such devices, the Hospital did not implant
or cause such devices to be implanted.
              Cain submitted affidavits from two medical doctors, a toxicologist and a
private investigator attesting to the presence of biomedical devices in Cain's body.1 Cain
produced no evidence, however, connecting the Hospital to the devices.
              The trial court refused to consider Cain's opposition for two reasons.
First, the papers were untimely. They were due on June 13, 2014, but were not filed until
June 17, 2014. The court stated it had previously heard 17 motions for summary
judgments in the case and has advised Cain about the requirement for filing timely
opposition. The court found that Cain persists in disregarding the court's express
directions. Second, the discovery sanction order precludes Cain from presenting
evidence of liability or damages.
              The trial court granted the Hospital's motion for summary judgment.
                                       DISCUSSION
                                              I.
              Cain contends the trial court abused its discretion in imposing discovery
sanctions.
              Cain argues that he informed the Hospital and the trial court on the record
that his medical condition must be taken into account in scheduling his second
deposition. He claims the trial court ignored his medical condition.
              But Cain fails to point to anywhere in the record where he so informed the
court. He has a duty to support any reference to the record by citation to the volume and


1
 We grant the Hospital's motion to augment the record (filed Jan. 2, 2015) to include the
opposition papers submitted by Cain.


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page number where the matter appears. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,
§ 695, p. 764.) Failure to cite to the record waives the argument. (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1245.) The record shows no opposition to the Hospital's motion
for sanctions.
                 Moreover, the record shows the trial court did not schedule Cain's second
deposition. Instead, the court left it to Cain and the Hospital to agree on the time and
place. Even after Cain agreed, he failed to appear.
                 Evidentiary sanctions may be imposed when the offending party has
engaged in a pattern of willful discovery abuse that caused the unavailability of evidence.
(Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1219.) In ruling on the
Hospital's initial motion for discovery sanctions, the trial court recited a long list of
discovery abuses committed by Cain. That alone would have justified the imposition of
evidentiary sanctions. Instead, the trial court gave Cain another opportunity by ordering
the parties to agree to the scheduling of his second deposition. Cain disobeyed the order
by failing to appear for the deposition. The trial court was well within its discretion in
imposing the sanctions.
                 The discovery sanctions imposed by the trial court had the effect of barring
any evidence in opposition to the Hospital's motion for summary judgment. Cain does
not challenge the sufficiency of the Hospital's evidence in support of its motion. The trial
court properly granted the motion.
                 In any event, had the trial court considered Cain's evidence, it would
not have been availing. Even assuming Cain's affidavits show his body contains
biomedical devices, he produced no evidence that even remotely suggests the Hospital
had anything to do with their implantation. It is not enough for Cain simply to state,
unsupported by any reference to the record, that his evidence is sufficient to raise a triable
issue of fact.
                 We need not consider Cain's contention that the trial court erred when it
refused to consider his opposition papers because they were untimely. Even if Cain had
filed his opposition in a timely manner, he would not have prevailed.


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             The judgment is affirmed. Costs on appeal are awarded to respondents.
             NOT TO BE PUBLISHED.




                                       GILBERT, P. J.


We concur:



             YEGAN, J.



             PERREN, J.




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                                Donna D. Geck, Judge

                       Superior Court County of Santa Barbara
                        ______________________________


            Richard L. Cain, in pro. per., for Plaintiff and Appellant.
            Hall, Hieatt & Connely, LLP, Mark B. Connely, Molly E. Thurmond for
Defendants and Respondents.
