Filed 6/9/15 Saliba v. St. Joseph Hospital of Orange CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


FRED SALIBA,
                                                                       G049146
     Plaintiff and Appellant,
                                                                       (Super. Ct. No. 30-2011-00453927)
         v.
                                                                       OPINION
ST. JOSEPH HOSPITAL OF ORANGE,

     Defendant and Respondent.


                   Appeal from an order of the Superior Court of Orange County, Thierry
Patrick Colaw, Judge. Affirmed.
                   Joseph S. Park and Fred Saliba, in pro. per., for Plaintiff and Appellant.
                   Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Michael J. Trotter,
Brenda M. Ligorsky, and David P. Pruett for Defendant and Respondent.
                                          *                  *                  *
              Fred Saliba appeals from the trial court’s order dismissing his medical
malpractice claim against St. Joseph Hospital of Orange (the hospital) after the trial court
entered terminating sanctions against him. Neither Saliba nor counsel appeared at a
scheduled hearing on whether to impose issue sanctions or terminating sanctions for
Saliba’s longstanding discovery violations, and neither responded substantively to the
trial court’s subsequent request for briefing on which sanctions to impose. Although
represented by counsel, Saliba did not explain in a cursory opposition to sanctions how
his lawsuit would survive issue sanctions precluding any new evidence of damages based
on his failure to respond to the hospital’s discovery requests for evidence of his damages.
In other words, Saliba pointed to no responsive deposition testimony and identified no
witnesses, documentation, or any other evidence he had provided in discovery to that date
to support any aspect of the damages element of his malpractice cause of action.
              The court already had continued the trial once on the eve of trial and given
Saliba five more months to seek help for his mental illness and a total of 10 months to
answer the requested discovery. But neither Saliba nor counsel took any action during
that time. (Code Civ. Proc., § 375 [“An action or proceeding does not abate by the
disability of a party”].) As this court observed in Laguna Auto Body v. Farmers Ins.
Exchange (1991) 231 Cal.App.3d 481, 491, “[T]he issue before us is not what sanction
we would have imposed, but whether the trial court abused its discretion in ordering
dismissal as a sanction.” Faced with Saliba’s failure to identify any damages evidence
that would survive issue sanctions to support his lone claim against the hospital, we
cannot say the trial court abused its discretion in entering terminating sanctions for his
failure to participate in the discovery process and move his case forward. We therefore
affirm the trial court’s dismissal order.




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                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              Saliba filed in March 2010 an initial lawsuit against the hospital and several
doctors or psychologists who apparently worked at the hospital, but then dismissed it in
November 2010. He filed this action in March 2011 alleging in a form complaint two
causes of action: assault and battery against Michael Emmi, Jr., and medical malpractice
against the hospital. On the second cause of action, the complaint alleged the hospital
and “Does 11 to 20 committed malpractice as follows: [¶] . . . Plaintiff was voluntarily
admitted [to the hospital] for a psychiatric evaluation and was transferred to Behavioral
Health Services within the hospital. When transferred to said department, the Defendant
allowed Plaintiff to be placed in a room with another patient [Emmi], who became
agitated, delusional and violent against the Plaintiff. Said patient proceeded to attack the
Plaintiff and cause him significant injuries. The Defendant’s care of Plaintiff fell below
the standard [of care] in their placement of the patients, evaluations of incoming patients,
specifically co-defendant, monitoring of patients, staffing and supervision of patients. As
a result of same, the Plaintiff suffered significant injuries and has incurred medical
expenses to cure and relieve the effects of said injuries.”
              After the hospital answered the complaint and the parties conducted an
initial round of discovery, the hospital moved for summary judgment on grounds it was
not responsible for Saliba’s alleged injuries. According to the hospital, psychiatric
placement decisions, including Saliba’s claim Emmi should not have been placed in a
double-occupancy room, are made “by the admitting psychiatrist,” an independent
contractor and health care provider, “not by the [hospital’s] nursing staff,” and the
hospital also introduced evidence “that the management and monitoring of both Saliba
and Emmi were provided in accordance with the standard of care.”
              The trial court denied summary judgment on multiple independent grounds,
noting both fatal defects in the hospital’s separate statement of material facts and finding

                                              3
triable issues of fact, including on the standard of care. Saliba had submitted in
opposition to summary judgment the declaration of Dr. Carole Lieberman, a psychiatrist,
who opined that while Emmi had been admitted to the hospital “on an involuntary hold as
a Danger to Self and Gravely Disabled,” he “should have also been admitted as a Danger
to Others, based upon his history and mental status. St. Joseph Hospital should never
have placed Michael Emmi (19 years old) in the same room as Fred Saliba (40 years old),
given Mr. Emmi’s volatile mental state and Mr. Saliba’s vulnerable mental state. Indeed,
it is unlikely that any patient would have been safe from Mr. Emmi, and he should have
been given his own room and/or placed on 1:1 supervision.”
              Notably, following the trial court’s denial of summary judgment, Saliba did
not designate Lieberman or anyone else as an expert to testify at trial on the applicable
standard of care. (See Avivi v. Centro Medico Urgente Medical Center (2008)
159 Cal.App.4th 463, 467 [“Both the standard of care and [the] defendants’ breach must
normally be established by expert testimony in a medical malpractice case”].)
              In any event, a second round of discovery commenced in which the hospital
served on Saliba interrogatories aimed at eliciting collateral source information pertinent
to his alleged injuries (e.g., disability, social security, or insurance or other coverage
based on his alleged injuries) and to identify and substantiate his alleged medical
expenses, loss of earnings or earning capacity, and general damages (“pain, discomfort,
anxiety, emotional distress, inconvenience, physical impairment or disfigurement”). The
hospital served the interrogatories on September 25, 2012, with ample time for Saliba’s
response before the March 2013 trial date.
              Saliba’s initial response asserted damages of $1,325,500, but he did not
substantiate them with any of the documentation as the hospital had requested. Plaintiff
simply listed the following amounts: weekly psychotherapy, $110,000; psychiatric
hospitalizations, $75,000; treatment for erectile dysfunction, $50,000; other medical
treatment for physical injuries, $50,000; past medical bills, $175,000; loss of future

                                               4
income, $240,000; “Loss of Past [sic: Potential?] Wages as Arabic Translator in Iraq,”
$390,000; general damages, $250,000; and court costs and fees of $12,500. Saliba
promised as required (Code Civ. Proc., § 2030.230) to “produce and/or afford
propounding party a reasonable opportunity to examine, audit, or inspect these bills,
receipts, canceled check documents and to make copies, compilations, abstracts, or
summaries.” Saliba never did so, and the hospital’s meet and confer attempts were
fruitless. The hospital filed a motion to compel Saliba’s compliance, set to be heard on
January 25, 2013.
              The hospital also had served in mid-November 2012 targeted “pre-trial”
interrogatories in anticipation of trial, requesting that Saliba update any information he
may have provided in prior discovery, specifically on the topics of: (1) economic
damages; (2) damages susceptible to offset, and (3) “each and every contention or theory
of liability known to you at this time that you will or may raise at the time of trial against
this defendant.” (Italics added.) The “pre-trial” discovery request also sought production
of any evidence to support “any specific contentions of medical negligence that you
intend to advance at the time of trial” and “evidence you intend to introduce at the time of
trial [to support] physical or mental injuries you claim were occasioned by the alleged
negligence of defendants.” When Saliba did not respond to the hospital’s pretrial
discovery request or a follow-up demand on its earlier request for supporting
documentation, the hospital filed another motion to compel his compliance. The motion
was originally set to be heard on February 1, 2012, but the hospital filed an ex parte
motion (with notice to Saliba) for the hearing to be consolidated with the January 25
hearing on its earlier pending motion to compel discovery.
              Saliba’s attorney did not appear at the January 25, 2013 hearing, but
counsel for the hospital contacted him before the hearing and conveyed to the court that
“he doesn’t have any opposition to the motions.” Consequently, with the trial date set for
March 4, 2013, the trial court granted the hospital’s motions to compel Saliba’s

                                              5
compliance with his discovery obligations and ordered Saliba to file his discovery
responses by February 19, 2013.
              He failed to do so. Neither he nor counsel responded to the discovery
requests for evidence or documentation substantiating his alleged damages, nor the
hospital’s requests to detail “every contention or theory of liability,” or its “pre-trial”
requests that Saliba identify and provide evidence he intended to introduce at trial of the
hospital’s negligence or Saliba’s physical or mental injuries attributable to the alleged
negligence.
              Meanwhile, the hospital became concerned about Saliba’s competency to
testify, if he elected to testify at trial. Saliba had submitted under discovery code
procedures to a medical exam on December 14, 2012, by an expert for the hospital,
Dr. Thomas Garrick, a psychiatrist. Garrick concluded Saliba was mentally impaired at
that time and unable to understand the importance or nature of the “legal process itself.”
A follow-up exam with a different expert for the hospital, Dr. Edwin Amos, reaffirmed
Saliba was not mentally sound at that time. Apparently Saliba suffered from intermittent
and recurring bouts of mental illness, sometimes brought on by stress.
              The hospital had filed a motion for sanctions when no one on Saliba’s legal
team responded to the trial court’s order compelling discovery, and the hospital
separately filed a motion to prohibit Saliba from testifying at trial, based on his mental
state. The trial court considered the motions in a combined hearing near the end of
February 2013, where the court expressed concern about the impending trial date on
March 4, 2013, just two weeks away. The trial court also expressed concern that Saliba’s
attorney, Peter Suk Park, did not appear at the hearing.
              The hospital also noted Park’s absence at its deposition of Saliba’s treating
psychiatrist, who observed at that time that Saliba’s “underlying mental illness prevented
him from understanding the difference between fact and fantasy.” Saliba did not appear
at the hearing, so the trial court had no firsthand knowledge of his current mental state,

                                               6
but the court noted the emerging reports of his condition made for “a very awkward
lawsuit involving the hospital, and, apparently, a disabled Mr. Saliba.” The hospital
expressed concern that the discovery cut-off date had passed, and plaintiff’s counsel had
not designated any experts to testify at trial, including a failure to designate an expert on
the issue of the applicable standard of care or defendant’s alleged breach. The trial court
continued the hearing to February 21, 2013 for further consideration.
              Saliba’s attorney appeared at the hearing and requested more time based on
Saliba’s mental issues. The trial court observed, “[W]hat I’m gathering from what you’re
saying is you’re saying that the just thing to do is to postpone the trial indefinitely and
‘Let me see if I can’t get my guy straightened out. And if I can’t get him straightened
out, we’ll then appoint a conservator.’ [¶] And then you really don’t tell me what’s
going to happen after that. I mean, is the case going to proceed with a conservator giving
you directions on what to do . . . . [¶] I mean, how does that get us away from — I
mean, how are you going to prove the case if he can’t testify? That’s where I’m going.”
Counsel offered no answer.
              The trial court fashioned an interim solution by continuing the trial, while
declining to waive the discovery cut-off date or to vacate its discovery order requiring
Saliba’s compliance. The court explained, “All I’m going to do is to continue the
motion[] for terminating sanctions or issue sanctions for a reasonable period of time to re-
visit whether I should put limits on what loss-of-earnings claim your guy is going to be
able to make. And I’ll give him some time to try and get some help and then answer
these interrogatories, but we’re not going to go into this trial with Mr. Saliba incompetent
and the defense trying to guess what it is that your conservator — if that’s what it comes
to . . . is going to say or come up with.”
              The court encouraged Park to obtain the “neuropsych” evaluation on which
he premised his request for a continuance, and to obtain “all the health care” possible for
Saliba. The court cautioned, “We’ll find out whether they can get him so he can answer

                                              7
some interrogatories. And if he can’t, then I’m going to issue sanctions. Because you’re
not going to be able to — you’re still going to be — he’s still going to be disobeying a
court order, and it’s not fair to the other side to have to guess at what the evidence is
going to be.” The court set a new trial date almost five months away, on July 12, 2013,
and a status conference on June 20, 2013.
              The minute order from the unreported status conference on June 20, 2013,
reflected only that Saliba’s attorney intended to file a motion to be relieved as counsel.
No such motion was filed and the hospital’s motion for sanctions remained set for
hearing on the July 12, 2013 trial date.
              Counsel for Saliba did not appear at the hearing on July 12, 2013. The trial
court issued a tentative ruling granting the hospital’s unopposed sanctions motion, but
continued the matter for two weeks for the parties to brief whether issue sanctions or
terminating sanctions were appropriate.
              Park submitted only a paragraph on the question of whether the trial court
should impose terminating or issue sanctions. Park wrote: “Terminating sanctions [are]
overly harsh, given that Defendant[] [is] complaining about discovery that has already
been responded to and that involve a narrow area of inquiry which is Plaintiff[’]s lost
income. A discovery sanction may not place the party seeking discovery in a better
position than it would have been in if the desired discovery had been provided and had
been favorable. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)” Park concluded in
a confusing fashion, “Here, at best, [had the desired discovery been provided with
responses favorable to the hospital], Defendant could have prevailed at trial on the second
cause of action only.” The response was confused and perhaps nonsensical because the
complaint’s only cause of action against the hospital was the second one, i.e., for medical
malpractice. Accordingly, issue sanctions on damages resulting in a favorable verdict for
the hospital at trial on the second cause of action would result in a defense judgment.



                                              8
              In any event, the hospital had explained in its briefing that its discovery
requests were not aimed solely at the issue of damages, as Saliba now claimed. True,
Saliba provided no medical bills or other documentation to support his damages
calculations, and there was apparently no prospect he would testify to support his damage
claims. But the discovery requests also had requested plaintiff to identify witnesses “to
support his contentions of liability, injuries and damages,” and he identified none, nor did
Park in opposing sanctions point to any witnesses he or Saliba had identified on the
question of damages, liability, or his injuries. The discovery requests also had sought
production of any evidence to support “any specific contentions of medical negligence
that you intend to advance at the time of trial” and “evidence you intend to introduce at
the time of trial [to support] physical or mental injuries you claim were occasioned by the
alleged negligence of defendants.” (Italics added.) In other words, it appears Saliba
failed in his discovery responses to provide testimonial, documentary, or other evidence
of damages or liability, and failed in opposing sanctions to identify any discovery
responses or other evidentiary basis on which his malpractice claim could go forward if
only partial sanctions were imposed.
              Park appeared at the July 26, 2013 hearing on terminating or issue
sanctions and argued only that no sanctions should be imposed. He argued, “[W]e tried
to get some discovery, but our client, as you may remember, is mentally unavailable, and
for the last few months I was not even able to get in touch with him because part of that
time, since early this year, he has been homeless. So he’s mentally not there and both our
expert and their expert say he’s, I don’t know, [in] layman’s terms, crazy.” Park had last
contacted Saliba about a month earlier.
              Counsel did not suggest that if issue sanctions were imposed — for
example to eliminate damages for lost earnings — that he was ready to proceed to trial
because he had provided responsive discovery identifying and substantiating other claims
of damage with documentation or by identifying witnesses who could testify on those

                                             9
claims. Similarly, he did not state at the hearing or in his briefing that if the trial court
imposed issue sanctions limiting Saliba’s damage categories, he nevertheless had
identified and provided in responsive discovery the evidence he intended to introduce at
trial concerning the hospital’s liability or negligence.
              Instead, counsel simply requested “maybe [a] two months extension.”
Faced with no evidence of efforts to restore Saliba’s mental health or prospects of success
in doing so, and no evidence of an attempt to appoint a conservator or guardian ad litem
or otherwise to attempt to proceed with the case, the trial court anticipated further similar
extension requests, querying, “What do I do[,] just wait around? What does Miss
Solmayor and her client do, just wait around for the five years[?]” The court observed,
“It’s not fair to her client to wait until just before the five years and then suddenly have to
go to trial when she’s hasn’t been able to do discovery on your guy. This case is perfect
for the court to dismiss for failure to prosecute, disobeying the court orders and a host of
other reasons.”
              The trial court took the matter under submission and subsequently issued an
order granting the hospital’s motion for terminating sanctions. Saliba now appeals.
                                               II
                                        DISCUSSION
              Saliba contends the trial court abused its discretion by imposing terminating
sanctions. First, he argues that from its inception the issue of sanctions was not properly
before the court because the hospital failed to provide him proper notice of its ex parte
motion to set a hearing date on its motions to compel his discovery responses. As a
result, he contends he “was not able to appear nor given an opportunity to oppose the ex
parte applications” to compel his discovery responses. Saliba, however, does not identify
any specific timing requirements or notice procedures that the hospital allegedly violated.
It appears the hospital gave the requisite notice of its ex parte applications to compel
Saliba’s discovery responses, including notice of a consolidated hearing on January 25,

                                               10
2013, instead of setting one motion for a hearing on that date and another a week later on
February 1st. (See Cal. Rules of Court, Rule 3.1203 [notice at a minimum by 10:00 a.m.
on the preceding court day, absent exceptional circumstances].)
              In any event, Saliba does not dispute that his attorney knew of the hearing
dates and told the hospital he would not appear to contest its motions to compel discovery
and that Saliba had no opposition to entry of an order compelling his discovery
responses. Presumably, counsel at that time hoped to gain his client’s discovery
compliance. While that hope proved unfounded, Saliba’s statement through counsel that
he was aware of the hearing, chose not to appear, and did not oppose entry of court orders
compelling discovery waived any conceivable notice defect. (Cf. Alliance Bank v.
Murray (1984) 161 Cal.App.3d 1, 7-8 [defect in notice of hearing waived where counsel
appears “even when no notice was given at all”].)
              Second, Saliba contends his discovery violations cannot be regarded as
willful because he was not of sound mind, and therefore the court should not have
imposed terminating sanctions. This claim is misplaced, however, because Saliba has
never disputed the trial court was entitled to impose issue sanctions for his failure to
present through responsive discovery prima facie evidence to support his claims of lost
earnings or lost earning potential. After all, as the plaintiff he bore the burden of proof
on his cause of action and his damages claim necessarily would fail at trial in the absence
of evidence. As noted, a plaintiff’s lawsuit does not abate because of his or her disability
(Code Civ. Proc., § 375), but rather must go forward or be dismissed. A litigant may not
“turn a deaf ear to the processes of the court with impunity, thus precluding effective
judicial administration at the trial court level.” (Bernstein v. Allstate Insurance Co.
(1981) 119 Cal.App.3d 449, 451.)
               Like the trial court, we are sympathetic to the dilemma posed by Saliba’s
apparently deteriorating mental state. The dilemma was not limited in effect to plaintiff’s
counsel, but extended to opposing counsel and the trial court. (See Abeles, The Dilemma

                                             11
Posed by an Opposing Party with Diminished Capacity (Nov. 2007) Los Angeles Lawyer
80 (hereafter Abeles) [decrying absence of California “rules and regulations that provide
any guidance in such situations” and imploring lawmakers “to put formal procedures into
place that guide . . . attorneys, opposing counsel, and the court [how to] deal with these
issues”].) Primary responsibility fell to plaintiff’s counsel, who may seek appointment of
a guardian ad litem (GAL) through the intercession of a relative, a friend, or by court
intervention. (Code Civ. Proc., § 373, subd. (c); see Abeles, supra, [observing, “There
can simply be no judicious outcome if one of the parties lacks the capacity to understand
the proceedings, and his or her attorney refuses to provide the required clarity”].)
               Here, the court continued the trial for five months and generously afforded
more than 10 months from the initial discovery requests for counsel or Saliba to respond
or to develop a plan to proceed, but after providing the continuance on the eve of the first
trial date, the court heard nothing from counsel or Saliba. Notably, Saliba does not argue
the trial court should have granted counsel’s belated suggestion after the second trial date
passed for a “two months continuance.” Counsel raised this possibility in an offhand
manner without notice or a supporting declaration and after skipping the sanctions
hearing and with no indication counsel would seek medical aid for Saliba or a GAL
appointment.
               Instead, Saliba’s primary claim is that the trial court erred in imposing
terminating sanctions instead of lesser, issue-preclusion sanctions. But in opposing
sanctions, Saliba never argued he was ready to proceed to trial because he had provided
responsive discovery identifying and substantiating particular claims of damage with
documentation or by identifying witnesses who could testify on those claims. While
there is an abstract or theoretical possibility such evidence could exist, Saliba never
pointed to evidence he furnished the hospital in responsive discovery requests to support
his claims at trial. Similarly, he did not state at the sanctions hearing or in his opposition
that if the trial court imposed issue sanctions limiting Saliba’s damage categories, he

                                              12
nevertheless had identified and provided in responsive discovery the evidence he
intended to introduce at trial concerning other particular categories of damages. Nor did
he identify responsive discovery evidence to establish the hospital’s negligence liability.
He thus failed to point to evidence he had provided in discovery to support essential
elements of his malpractice claim: namely, liability and damages. In essence, in now
arguing for imposition of issue sanctions instead of terminating sanctions, Saliba seeks to
go to trial without any indication he provided the trial court with notice of discovery
evidence to support his case at trial. Because Saliba failed to offer any substantive
opposition to sanctions, we cannot say the trial court abused its discretion in imposing
them.
                                             III
                                      DISPOSITION
              The trial court’s dismissal order is affirmed. The parties shall bear their
own costs on appeal.




                                                   ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




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