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Wishum v. Long Beach Memorial Hospital12/30/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiff Lottie Wishum purports to appeal from the order imposing terminating sanctions due to plaintiff's willful failure to comply with a discovery order and to pay monetary sanctions. For purposes of appellate review, we treat this order as an order of dismissal (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 488, fn. 1), and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff sued defendant Long Beach Memorial Hospital for medical malpractice, negligence, "willful patient dumping," and infliction of emotional distress. When plaintiff failed to respond to defendant's form interrogatories and request for production of documents, defendant filed a motion seeking an order compelling plaintiff to do so and imposing monetary sanctions. Defendant also sought an order that its request for admissions be deemed admitted. The hearing on these matters was noticed for May 21, 2002.
On May 21, plaintiff's counsel Lucien E. Dierickx failed to appear at the hearing. The trial court set defendant's motions for hearing on June 4 and ordered Attorney Dierickx to appear.
At the June 4 hearing, the trial court asked Attorney Dierickx why it should not proceed as if there had been no opposition, in that he had filed plaintiff's opposition a mere 12 hours before the hearing. Defense counsel represented that she had not been served with or given a copy of plaintiff's opposition and asked the court to proceed as if there had been no opposition filed. Defense counsel further stated that she had not received any response to the request for admissions and interrogatories that she had propounded on plaintiff. She also had not received anything in response to her demand for production of documents.
Attached to plaintiff's untimely opposition were her purported responses to requests for admissions and to form interrogatory number 17.1. Although plaintiff had verified these purported responses, the proofs of services attached to these responses were blank. Attorney Dierickx acknowledged that the proofs of service were not in the documents he filed with the court but represented that he had a copy of an executed proof of service.
The reporter's transcript discloses that Attorney Dierickx then provided defense counsel with a proof of service signed by plaintiff. Defense counsel retorted, "I don't know what to say. I have a proof of service by mail here, but it looks like - I haven't seen this before. I haven't seen an envelope, and I don't know when it was created." The court then noted "that the purported proof of service for responses for requests for admissions was served by the plaintiff herself, Lottie Wishum. [ ] In view of what I've been told, that defense counsel has not received any of this material, and, specifically, the request for admission which was filed - was served by the plaintiff herself allegedly, no proof of service received by the court or by counsel, the motions are granted."
When Attorney Dierickx interjected, "I did file the proof of service myself, your Honor, not Miss Wishum," the court stated, "I'm merely going by what I've looked at. The document is signed by Lottie Wishum." The court continued, "The whole point is the opposition should have been provided as required by code to both counsel and myself. [ ] . .
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