Mileikowsky v. Tenet Healthsystem

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

Defendants and Respondents.

B159733

(Los Angeles County
Super. Ct. Nos. BS056525 &
BC233153)

GIL N. MILEIKOWSKY,

TENET HEALTHSYSTEM et al.,

APPEAL from an order of the Superior Court of Los Angeles County,
Lawrence W. Crispo, Judge. Affirmed.

Roger Jon Diamond for Plaintiff and Appellant.

Ervin, Cohen & Jessup, Mark T. Kawa and Joseph R. Cilic for Defendants
and Respondents.

Plaintiff and Appellant,

Filed 4/6/05

Appellant Gil Mileikowsky, M.D., appeals from an order striking his
complaint for repeated failure to provide discovery. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Related to Substantive Claims
1. Original Complaint and Preliminary Injunction

Dr. Mileikowsky brought suit against “Tenet Healthsystem” and “Encino-
Tarzana Regional Medical Center”1 in case no. BS056525 in April 1999. The
petition for writ of mandate alleged that Dr. Mileikowsky had medical and surgical
privileges at ETRMC since his appointment to membership on the medical staff in
1986. Every two years thereafter until 1998, he was reappointed to membership.
At that time, he claimed, he was not given actual notice of the approaching
expiration date of his two-year term, and was not timely furnished with the
materials needed to obtain reappointment (essentially a written application) in
violation of medical staff bylaws. In February 1999, Dr. Mileikowsky received
notice that, as he had not timely filed his application for reappointment, he was
considered to have voluntarily resigned. He attempted to file a reappointment
application, but was rebuffed. Dr. Mileikowsky challenged the decision to deem
him a voluntary departee, and ETRMC’s medical executive committee allegedly
rejected that challenge “without prior notice[] or hearing” and in violation of his
“right to due process.”

The petition sought a determination that ETRMC’s actions were invalid and
a denial of Dr. Mileikowsky’s due process rights, and an order directing ETRMC

1
The Encino-Tarzana Regional Medical Center was later said to be a fictitious
name of AMI/HTI Tarzana Encino Joint Venture. This entity and its physical facilities
will be referred to hereafter as “ETRMC.” Additional Tenet entities referred to as “Tenet
Healthcare” and “Tenet Healthcare Corporation” were later added as defendants. These
entities along with Tenet Healthsystem will be jointly referred to as “Tenet.”

to set aside its actions or restraining it from giving effect to its determination that
Dr. Mileikowsky had voluntarily resigned.

On the day the complaint was filed, the court set a hearing on an order to
show cause re preliminary injunction, which it granted on April 19, 1999. The
injunction precluded ETRMC from preventing Dr. Mileikowsky from exercising
the privileges of an active status physician and surgeon and treating patients, or
reporting to others that he had voluntarily resigned.

2. Amended Petition

In June 1999, Mileikowsky filed an amended petition that added two Tenet
entities and 22 individual defendants.2 The amended petition also added tort
claims under Business and Professions Code section 17200, and for interference
with prospective economic advantage and defamation.

On June 16, 2000, the parties stipulated that “[the] preliminary injunction
[was] to remain in effect pending determination of damage claims, and that
[Dr. Mileikowsky] does not need mandamus relief as long as the preliminary
injunction remains in effect.” Thereafter, the court took the petition for writ of
mandate off calendar, and transferred the matter to a trial department.

2
The new entities were Tenet Healthcare, Tenet Healthcare Corporation, and
AMI/HTI Tarzana Encino Joint Venture, doing business as Encino-Tarzana Regional
Medical Center. The individual defendants were Daryl Alexander, Sunit Ben-Ozer,
Stephen Cooper, Gary Dosik, Allan Entin, Brian Fenmore, Rose Franco, Eugene
Gootnick, Paul Greenberg, Theodore Hariton, Laurie Holoff, Patricia Jones, Allan
Lichtman, Debra Miller, Douglas Morrow, Stephen Pine, Peter Rubenstein, Sheldon
Schein, James Shields, Dale Surowitz, William Treiger, and Michael Vermesh.

3. New Complaint and Temporary Restraining Order

In January 2000, while the litigation in case no. BS056525 was ongoing,
ETRMC’s executive committee recommended that Dr. Mileikowsky not be
reappointed to its medical staff.

In July 2000, Dr. Mileikowsky, represented by new counsel, filed a new
complaint (case no. BC233153) for breach of contract, breach of covenant of good
faith, infliction of emotional distress, retaliation for whistleblowing, and
defamation.3 The primary basis of this complaint was that Tenet and ETRMC had
violated the April 1999 preliminary injunction by placing restrictions on his access
to ETRMC facilities, including having him constantly accompanied by security
personnel when on ETRMC premises. Dr. Mileikowsky also claimed he was
retaliated against for reporting alleged violations of medical standards to the
California Medical Association and for assisting a plaintiff in a medical
malpractice action against ETRMC.

In a letter attached to the complaint as an exhibit, Dale Surowitz, ETRMC’s
chief executive officer, stated to Dr. Mileikowsky: “As a condition to your
continued access to hospital facilities and use of hospital resources, you are
directed to inform my office (or the nurse supervisor in charge outside normal
business hours) whenever you enter hospital premises. You are also directed to
inform my office, in advance, of any surgical procedure, which you schedule at
this facility. Hospital Administration will then assure that security personnel
accompany you whenever you are on hospital premises.” The letter went on to
say: “[A]ny failure by you to comply with the measures described [above], or any
further violation of hospital policies (including, but not limited to, perceived

3
This complaint named three entity defendants–Tenet Healthsystem, Tenet
Healthcare Corporation, and ETRMC–and 12 individual defendants–Cooper, Dosik,
Fenmore, Franco, Jones, Lichtman, Miller, Morrow, Pine, Surowitz, and Vermesh, who
had been named in the earlier petition and complaint, and new party Jerry Clute.

threats or intimidation of hospital personnel or medical staff members, and copying
of patient records), will result in the summary suspension of your medical staff
membership and privileges.”

When he filed the new complaint, Dr. Mileikowsky sought a temporary
restraining order (TRO) and order to show cause re preliminary injunction. The
opposition justified ETRMC’s action by relating an incident that occurred in
December 1999. The operating room manager, Marleen Hafer, entered a surgical
suite where Dr. Mileikowsky was operating on a patient, and informed him that his
surgical assistant did not have clinical privileges and should be immediately
replaced by an alternate. Dr. Mileikowsky “aggressively backed Ms. Hafer, who is
less than five feet tall, against a wall while screaming at her, lunging in her
direction with his finger and making a head ing motion toward her.” The
anesthesiologist, “fear[ing] for Ms. Hafer’s physical safety,” interjected himself
and caused Dr. Mileikowsky to turn away. Another observer from outside the
room gathered male personnel in case they were needed to restrain
Dr. Mileikowsky. The opposition further claimed that Dr. Mileikowsky “has been
involved in a longstanding series of incidents in which he has threatened, verbally
attacked and even physically assaulted hospital employees and other members of
the Medical Staff.” The only specific incidence of physical assault described
involved grabbing someone’s name badge “while screaming and acting in an
uncontrolled and dangerous manner” that occurred in February 1999. There was
also a reference to a 1991 incident where Dr. Mileikowsky screamed at someone
over the phone and threatened to “‘become an Israeli warrior and go to war.’”

The court issued a TRO dated July 11, 2000, prohibiting ETRMC from
“requiring [Dr. Mileikowsky] to be escorted while with or in view of any patient.”

In August 2000, Dr. Mileikowsky filed an application for contempt and
sanctions against ETRMC for violation of the July 2000 TRO. Dr. Mileikowsky
contended that security personnel sent to follow him were seen by patients and

family members. In addition, a handwritten memorandum was posted on an
ETRMC bulletin board, stating: “When Dr. Mileikowsky is here, he is to be
escorted by security at all times.” The application was denied.

In September 2000, defendants sought to modify the July 2000 TRO due to
Dr. Mileikowsky’s actions in visiting ETRMC to take photographs in support of
his application for contempt. The request was denied. Subsequently, however, the
court did not put in place a preliminary injunction.4

In October 2000, Dr. Mileikowsky filed a first amended complaint in case
no. BC233153, omitting all of the individual defendants save for Surowitz, and
adding claims for invasion of privacy, false light, and interference with prospective
economic advantage based on the same essential facts of having him followed by
security, interfering with his treatment of patients, etc. The court found that the
case was related to the earlier petition, and deemed the earlier petition the “lead
case.” By order dated January 10, 2001, a motion to consolidate was granted. In
April 2001, however, the court issued an order stating that the cases were
henceforth “unconsolidated.”

In November 2000, ETRMC summarily suspended Dr. Mileikowsky’s
clinical privileges.

In April 2001, Dr. Mileikowsky filed a second amended complaint in case
no. BC233153. Dr. Mileikowsky continued to insist that Tenet, ETRMC, and
Surowitz infringed his rights by interfering with his ability to work at ETRMC in
retaliation for his actions in reporting misfeasance and supporting a plaintiff in a
medical malpractice lawsuit.

In September 2001, Dr. Mileikowsky filed a third amended complaint in
case no. BC233153, further refining his claims. The parties agreed that he would

The original April 1999 preliminary injunction was still in place.

file a fourth amended complaint to streamline the issue and include the facts
contained in case no. BS056525 so that case could be dismissed.

The fourth amended complaint was filed on February 28, 2002. The
defendants were Tenet, ETRMC, Surowitz, Ben-Ozer, Fenmore, Miller,
Greenberg, Pine, Schein, and Vermesh.5 The new complaint contained allegations
of preferential treatment afforded to certain physicians and referral schemes that
amounted to kickbacks uncovered and reported by Dr. Mileikowsky . The
complaint further alleged that defendants had caused Dr. Mileikowsky to lose
privileges at another medical facility. It alleged that Dr. Mileikowsky had been
summarily suspended in November 2000 without good reason. It continued to
alleged that defendants were acting in retaliation for Dr. Mileikowsky’s decision to
assist the plaintiff in a malpractice action.

B. Facts Related to Discovery Sanctions
1. First Motion to Compel

On September 17, 1999, ETRMC and individual defendants Greenberg,
Jones, Lichtman, Miller, Morrow, Pine, Rubenstein, Schein, Shields, Surowitz,
Treiger, and Vermesh each propounded 42 special interrogatories in case
no. BS0565256 seeking to flesh out the facts that supported the contentions made in
the amended petition that defamatory statements were made by propounding
parties, that they engaged in acts intended to drive Dr. Mileikowsky from his
medical practice, destroy his reputation, cause him to be disciplined, etc. The
questions asked by each propounding party were virtually identical in substance,
inquiring whether Dr. Mileikowsky contended that the propounding party made

6
The interrogatories attached an attorney declaration stating that the number was
warranted “because of the complexity and the quantity of existing and potential issues in
[the] action.”

These parties are referred to hereafter as respondents.

defamatory statements or engaged in other actions discussed in the amended
complaint. In addition, ETRMC sought production of documents.
Dr. Mileikowsky was granted four extensions–to December 10, 1999–to respond
to the discovery requests.

On December 17, 1999, the propounding parties filed 13 separate but
essentially identical motions to compel responses to the interrogatories and asked
for monetary sanctions. In Dr. Mileikowsky’s opposition to the motions, his
counsel stated in a declaration that he was “a busy obstetrician/gynecologist” and
that they “had severe difficulty in finding the necessary time to prepare responses
to all of the simultaneously propounded discovery.” Counsel “anticipate[d]
. . . that prior to the time that this matter is heard, that the discovery responses will
have been served.” That did not occur, and by order dated January 6, 2000, the
court instructed Dr. Mileikowsky to respond to the interrogatories and document
requests by January 19, 2000, and awarded a total of $2,322 in sanctions.

2. First Request for Terminating Sanctions; Second Motion to Compel

On January 25, 2000, defendants moved for terminating sanctions or
monetary sanctions due to failure to comply with the court order of January 6.
Counsel stated in a declaration that he had been advised by Dr. Mileikowsky’s
counsel that he would comply with the court’s order two days late–by
January 21–but that no responses had been received. The opposition again
claimed that Dr. Mileikowsky did not have time to complete the discovery due to
his “busy practice.” Counsel stated that responses would be completed before the
hearing date on the request for terminating sanctions.

Also on January 25, 2000, ETRMC moved to compel responses to a second
set of special interrogatories and request for production of documents propounded
on December 10, 1999. The interrogatories and requests were directed at learning
whether Dr. Mileikowsky had copied medical records of persons who were not his

patients, and Dr. Mileikowsky had raised objections without responding.
Dr. Mileikowsky opposed the motions, arguing that his objections, one of which
was that the questions violated his right against self-incrimination, had been well
taken.

By order dated February 16, 2000, the court granted the motions with
respect to monetary sanctions and ETRMC’s motions to compel further responses
to the interrogatories. Dr. Mileikowsky was to serve responses on or before
February 28.

3. Second Request for Terminating Sanctions

On March 6, 2000, ETRMC sought terminating sanctions based on failure to

comply with the January 6, 2000, order by actually producing documents, although
no firm date had been set for that by the court. Instead, the parties were to “confer
with each other through respective counsel and determine a deadline by which
[Dr. Mileikowsky] would produce documents” after receipt of the responses to the
request for production. Dr. Mileikowsky’s opposition stated that the documents
had been delivered on March 9 (or March 14), and blamed the delay on serious
health problems within Dr. Mileikowsky’s family.7 On March 28, 2000, the court
ordered Dr. Mileikowsky to produce the documents by April 7 and to pay
monetary sanctions.

4. Third Motion to Compel

On March 16, 2000, ETRMC brought a motion to compel based on failure to
respond, without objection, to the second set of interrogatories and request for

7
Dr. Mileikowsky stated in his attached declaration that in late February 2000, he
traveled to Belgium to attend his nephew’s bris and naming ceremony, and to be with his
brother who was having a surgical biopsy. He was also needed there to consult with his
mother’s doctors to develop a treatment plan for her chronic cardiovascular problems.

production of documents as required by the order of February 16. In opposition,
Dr. Mileikowsky contended that ETRMC’s attorney failed to meet and confer and
that responses were belatedly served–due to “grave family health reasons”–on
March 21, 2000. In his responses, Dr. Mileikowsky stated that he had not copied
any medical records of persons who were not his patients, and that there were no
documents responsive to the request. By order dated April 6, 2000, the court
ordered Dr. Mileikowsky to pay monetary sanctions. The order further stated:
“This is the third time that the court has imposed monetary sanctions upon
[Dr. Mileikowsky] and his counsel for failures to provide discovery in this
proceeding. The court believes that such monetary sanctions are not sufficient to
obtain compliance by [Dr. Mileikowsky] and his counsel with their discovery
obligations, and the court believes that the failure to provide discovery in this case
has been frivolous and in bad faith. Accordingly, [Dr. Mileikowsky] and his
counsel are warned that any further failures on their part to comply with their
discovery obligations in this matter may result in the imposition of an evidence
sanction, an issue sanction, or a terminating sanction, in addition to monetary
sanctions.”

5. Third Request for Terminating Sanctions

On February 28, 2000, ETRMC served a third set of requests for production

on Dr. Mileikowsky seeking Dr. Mileikowsky’s curriculum vitae, documents
evidencing his board certification in the specialty of infertility, and documents
evidencing his board certification between January 1, 1980, and the present. On
April 13, 2000, ETRMC once again moved for terminating sanctions, this time for
failure to respond to the third set of requests for production. In opposition, counsel
for Dr. Mileikowsky claimed to have inadvertently filed the new request with older
requests, failing to realize that it was new. The two documents responsive to the
request were attached to the opposition. On May 8, the court ordered

Dr. Mileikowsky to pay monetary sanctions, but refrained from dismissing the
action because of “the fact that the discovery request in this instance appears to be
of trivial importance and appears to be one which could readily have been included
in one of the prior discovery requests.” The court was therefore “not positively
certain that this discovery request was not motivated more by the desire to harass
[Dr. Mileikowsky] than by the need of relevant information.”

6. Fourth Motion to Compel

On August 18, 2000, ETRMC and the individual defendants moved to

compel Dr. Mileikowsky to respond to questions he was asked at his deposition
and for monetary sanctions. Dr. Mileikowsky had refused to translate Hebrew
language advertisements he had placed in Hebrew language newspapers, or to
respond to questions concerning behavioral or disciplinary problems experienced
during his medical residency and seeking to identify his referral sources. He had
also refused to produce his engagement calendars. At the same time, ETRMC and
the individual defendants sought an order compelling Dr. Mileikowsky to appear
and conclude his deposition. Dr. Mileikowsky moved for a protective order
because defendants insisted on taking his deposition on four days in a row, rather
than spread out over the calendar to accommodate Dr. Mileikowsky’s schedule.

On September 18, 2000, the parties filed a stipulation setting dates for
Dr. Mileikowsky’s deposition and specifying that documents would be provided.
The court signed the stipulation, and put off the question of appointing a referee.
Later, a discovery referee was appointed, and the parties stipulated to the
appointment of a second one.

7. Fourth Request for Terminating Sanctions

In February 2001, defendants moved for terminating sanctions due to
Dr. Mileikowsky’s failure to post referee fees and refusal to attend a scheduled

hearing before the discovery referee. Dr. Mileikowsky stated in his opposition that
he had refused to appear before the discovery referee because he erroneously
believed he had seen defendants’ counsel engaged in ex parte contact with the
referee. Having realized his mistake, he indicated a readiness to proceed. The
referee recommended that terminating sanctions be denied and that no monetary
sanctions be awarded. The court ruled in accordance with the recommendation.

In March 2001, defendants moved to compel further responses to a request
for production of documents propounded by ETRMC. There were 130 requests in
the set, each asking for documents that pertained to each allegation of the first
amended complaint in case no. BC233153.8 Dr. Mileikowsky had objected to
them all.

In June 2001, the referee recommended that the August 2000 motion to
compel further answers at deposition be granted in part and denied in part. He also
recommended that a motion to compel production of documents filed by
Dr. Mileikowsky be granted in part and denied in part. The court approved and
followed the recommendations.

In May 2001, defendants moved to stay all discovery in the two actions until
an ongoing administrative hearing was concluded.

8. Fifth Motion to Compel

In July 2001, ETRMC moved to compel responses to its third set of
interrogatories, its fourth request for production of documents, and its first set of
interrogatories and requests for production of documents in case no. BC233153,
and for monetary sanctions. The third set of interrogatories and fourth request for
production of documents sought documents and other evidence supporting

8
This was the first discovery pertaining to case no. BC233153; prior discovery
requests pertained to the petition and first amended petition that was ultimately
dismissed.

Dr. Mileikowsky’s damage claims. The requests in case no. BC233153 sought
information on contentions contained in the first amended complaint. Responses
had been submitted to these various discovery requests, but were deemed
inadequate by ETRMC. On December 19, 2001, counsel informed the court that
the parties had entered into stipulations concerning a number of matters, including
outstanding discovery disputes. A “stipulation and order” was signed by counsel
for Dr. Mileikowsky and counsel for respondents on January 10, 2002. In it,
Dr. Mileikowsky agreed to “supplement[] his discovery responses by Friday,
February 15, 2002.” The stipulation and order contained blanks for the signature
of the referee and the court, but it was apparently never signed or filed.

9. Fifth Request for Terminating Sanctions

On February 27, 2002, respondents moved for terminating sanctions on the

ground that Dr. Mileikowsky had violated the stipulation by failing to provide any
additional discovery. Respondents further sought $8,500 in sanctions.
Dr. Mileikowsky and his new counsel claimed to have been working diligently on
discovery responses, but said they were unable to complete them in time. In
addition, counsel was seeking to be relieved.

By report and recommendation dated March 19, 2002, the referee
recommended that the motion be granted as to both termination of the litigation
and sanctions. The referee stated: “[Dr. Mileikowsky] has demonstrated a pattern
of promises and stipulations for the production of discovery responses that are
unfulfilled. Instead of production, [Dr. Mileikowsky] has changed counsel and
repeated the pattern of delay and non-production. The Referee finds this repetition
to be obstructive and willful, and in violation of [Dr. Mileikowsky’s] responsibility
to participate in discovery and to comply with stipulations and court orders.
Sanctions are warranted under CCP 2023(a)(3), (4), and (7).”

With respect to the nature of the discovery requests, the referee found that
respondents “asked for basic information on damage claims[] and contention
interrogatories that are fundamental to respondents’ ability to prepare a defense.”
Dr. Mileikowsky’s counsel “stipulated that production would be complete by
February 15, 2002. That stipulation, with the recommendation of the Referee, was
adopted as an order of the Court [sic9]. Nevertheless, the only further production is
an incomplete ‘confidentiality log’ prepared by counsel and produced with
[Dr. Mileikowsky’s] opposition to this motion. Monetary sanctions in the past
have not successfully gained [Dr. Mileikowsky’s] attention. Terminating sanctions
are appropriate under CCP 2023(a)(7).”

Concerning the separate award of $8,500 in monetary sanctions, the referee
stated: “[T]he Referee finds that monetary sanctions in the amount of $8500 are
justified and necessary as an additional sanction against [Dr.] Mileikowsky, but not
against current counsel. The Referee accepts the representation of counsel that
substantive responses have been prepared and sent to [Dr. Mileikowsky] for
review, but not returned by him. The expense of this motion and assembling the
record demonstrating justification for terminating sanctions should be recovered by
respondent against [Dr. Mileikowsky] personally.”

On March 26, 2002, respondents requested clarification of the referee’s
report and recommendation. Due to the “unconsolidation” of case nos. BS056525
and BC233153, there had been some confusion about whether both should be
subject to terminating sanctions.

At some point either prior to or on April 22, 2002, Dr. Mileikowsky, acting
in pro. per.,10 asked the referee to reconsider his recommendation. The motion for

9
filed.

10
2002.

The court granted Dr. Mileikowsky’s counsel’s motion to be relieved on April 12,

As we have said, the stipulation was never signed by the referee or the court or

reconsideration was denied because “the statutory requirements of CCP 1008 are
not met” in that the request was not timely and there were no new or different
facts. At the hearing on April 22, in response to the referee’s comment that “it was
important on March 19 that your lawyers then representing you told me that they
had completed some discovery responses, had sent those responses to you, but you
had not returned them,” Dr. Mileikowsky said: “I do not deny it . . . .”

Prior to submitting his report and recommendation to the court, the referee
clarified that the termination should be as to both of the related cases, noting that
Dr. Mileikowsky was to have filed an amended complaint consolidating the
operative pleadings of the two matters. On April 24, 2002, the court adopted the
recommendation of the referee concerning sanctions.

Dr. Mileikowsky retained new counsel, and on May 3, 2002, moved for
reconsideration and for relief under Code of Civil Procedure section 473. The
motion pointed out that there was no outstanding court order at the time
terminating sanctions were granted, and contended that the parties’ in-court
stipulation did not provide for terminating sanctions as a method of enforcement.11
The motion also presented evidence that prior counsel had not, as represented to
the referee, sent prepared responses to Dr. Mileikowsky for his review and
signature at any time prior to the date they were due. In addition, evidence was
presented that when other prior counsel sent proposed responses to
Dr. Mileikowsky for review and comment, he responded promptly.

11
Counsel for respondents had explained on the record to the court on December 19,
2001, that the parties had “a stipulated order which can be enforced by way of contempt
of court or issue sanctions should [Dr. Mileikowsky] not provide the responses, as he has
agreed to do.” However, the written stipulation stated: “[Respondents] may file a motion
for sanctions, including but not limited to, issue, evidence or terminating sanctions, if
they do not receive [Dr. Mileikowsky’s] supplemental discovery responses by
[February 15, 2002].” (Italics added.)

Shortly after the motion for reconsideration was filed, respondents moved
ex parte to have the referee approve the parties’ discovery stipulation nunc pro
tunc.12 The referee refused the request. The motion for reconsideration was
denied on June 3, 2002.

On June 21, 2002, a notice of appeal was filed “from the Order Striking
[Dr. Mileikowsky’s] Pleadings in this case and Terminating Sanctions entered on
April 24, 2002.” The notice said the appeal was to include “review of any
underlying or intermediate ruling or proceeding, as well as any motion brought to
reconsider, or correct[,] the order, or any motion seeking relief from the order
under CCP § 473 . . . .” The notice of appeal was filed under case no. BS056525,
which was said to be “Related to” case no. BC233153. No separate notice was
filed under case no. BC233153.

C. Motion to Dismiss Appeal

On June 25, 2002, respondents moved for an order striking the fourth
amended complaint in case no. BC233153 and the first amended petition for writ
of mandate in case no. BS056525. On July 25, it was denied without prejudice.

Respondents moved to dismiss the appeal on the ground that there was no
appealable judgment or order. Apparently, the reason the trial court refused the
motion to strike and refused to enter judgment in favor of respondents was the
pendency of the appeal, which generally divests trial court jurisdiction. This court
denied the motion to dismiss on the ground that sanction orders in amounts greater
than $5,000 are appealable and that we would “proceed to review the imposition of
the monetary discovery sanctions.” We further stated that since there was no order

12
Respondents presented hearsay evidence that prior counsel had blamed
Dr. Mileikowsky for the failure to have the stipulated order signed and filed by the court,
telling counsel for respondents that Dr. Mileikowsky had “specifically prohibited” prior
counsel from giving the court the written stipulation.

dismissing the actions or striking the pleadings, “an appeal on this ground is not
permissible.”

DISCUSSION

We stated in our order denying the motion to dismiss the appeal that since
no order dismissing the first amended petition and fourth amended complaint had
been filed, the only issues before us pertained to the monetary sanctions awarded.
However, despite our attempt to limit the appeal, it appears from the parties’ briefs
that monetary sanctions were based on the same conduct that led to terminating
sanctions, and the two are inextricably intertwined. Indeed, Dr. Mileikowsky’s
principal argument on appeal is that the monetary award, based as it was on the
fees and costs incurred in prosecuting the motion for terminating sanctions, should
be reversed because the motion for terminating sanctions was not appropriate and
should have been denied and respondents “should not be rewarded for making an
unsuccessful motion.” We, therefore, turn to the issue of whether respondents’
motion for terminating sanctions was well taken.

Shortly after the discovery statutes were overhauled in the late 1980’s, the
court in Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d
1579 held that “before a court terminates a plaintiff’s action for failure to comply
with discovery, there must be a court order compelling plaintiff to comply with the
discovery request.” (Id. at pp. 1580-1581.) In Ruvalcaba, plaintiff brought an
action against his insurance carrier. During the course of the litigation, the
defendants moved to dismiss for failure to comply with document production
requests. The moving papers showed that a request for inspection of documents
had been served on plaintiff and that plaintiff had failed to respond despite two
extensions of time. The moving papers also showed that “numerous times during
the pendency of the matter [plaintiff] had failed to reasonably respond to other

discovery devices and that previously the court had ordered compliance and
sanctions against [plaintiff] and/or [plaintiff’s] counsel.” (Id. at p. 1580.)

The court first looked at the history of discovery legislation: “The code
required the disobedience of a court order as a prerequisite for dismissal based
upon discovery abuses and recognized that lesser sanctions, appropriate for the
particular abuse, should be granted before a terminating sanction, such as
dismissal, was utilized. [Citation.] Although prior case law indicated a prior order
was not mandated [citation], the new legislation acknowledged that dismissal was
a drastic sanction [citation] which should only be used after a party had an
opportunity to comply with a court order.” (Ruvalcaba, supra, at p. 1581.)

The court began its analysis of the new legislation with Code of Civil
Procedure section 2023,13 which addresses sanctions in general. It defines misuses
of the discovery process to include: “Failing to respond or to submit to an
authorized method of discovery” and “Disobeying a court order to provide
discovery.” (§ 2023, subd. (a)(4) and (7).) “To the extent authorized by the section
governing any particular discovery method,” the court may, after hearing and
notice, “impose a monetary sanction”; “impose an issue sanction”; “impose an
evidence sanction”; or “impose a terminating sanction.” (§ 2023, subd. (b), italics
added.)

Section 2031 governing document requests, the “particular discovery
method” at issue in Ruvalcaba, provides in relevant part: “The court shall impose
a monetary sanction under Section 2023 against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel a response to an inspection
demand, 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.
If a party then fails to obey the order compelling a response, the court may make

13
Statutory references herein are to the Code of Civil Procedure unless otherwise
indicated.

those orders that are just, including the imposition of an issue sanction, an
evidence sanction, or a terminating sanction under Section 2023.” (§ 2031, subd.
(l).) Subdivision (n), governing failure to permit inspection, likewise provides in
pertinent part: “If a party then fails to obey an order compelling inspection, the
court may make those orders that are just, including the imposition of an issue
sanction, an evidence sanction, or a terminating sanction under Section 2023.”
In Ruvalcaba, the court interpreted the italicized language from section 2031

as meaning that when plaintiff did not respond, “the court could have ordered
[plaintiff] to respond to the discovery request and could have imposed a monetary
sanction.” (Id. at p. 1583.) But the court was clear that more serious sanctions
could only come later: “If thereafter [plaintiff] disobeyed this court order,
[plaintiff] would do so at his own risk [citation], knowing that such a refusal
provided the court with the statutory authority to impose other sanctions. Thus, the
court, in its discretion, could have ordered specific facts to be taken as established,
prohibited [plaintiff] from introducing certain matters into evidence, imposed
monetary sanctions, or other sanctions specifically related to the offense.
[Citations.] The court also could have dismissed the action. Without the prior
order directing [plaintiff] to comply, however, it was inappropriate for the court to
dismiss the matter.” (Ibid., italics added.)
The court in Ruvalcaba came to the conclusion that terminating sanctions

could not be applied despite ample evidence of prior sanctionable conduct on the
part of the plaintiff with respect to earlier discovery requests. “The 3,000-page
clerk’s transcript in the matter demonstrate[d] continued discovery abuses by
[plaintiff] and/or his attorney for which sanctions ha[d] already been imposed and
which ha[d] resulted in needless delays and costs.” (Id. at p. 1583.) According to
the court, despite plaintiff’s earlier defalcations, until a new order was disobeyed,
only monetary sanctions could be imposed. (Ibid.) “[A]lthough the actions of

[plaintiff] and his counsel may demonstrate a history of discovery abuses, without
a disobeyed court order a terminating sanction was improperly imposed.” (Ibid.)

In the present case, the stipulation covered ETRMC’s third set of
interrogatories and fourth request for production of documents in case
no. BS056525, and its first set of interrogatories and requests for production of
documents in case no. BC233153. Therefore, we look both to section 2030,
governing interrogatories, and section 2031, governing document requests. We
have already quoted the pertinent language from section 2031. Section 2030 is not
substantially different. It provides in pertinent part: “The court shall impose a
monetary sanction under Section 2023 against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel a further response to
interrogatories, 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. [¶] If a party then fails to obey an order compelling further
response to interrogatories, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Section 2023.” (§ 2030, subd. (l).)
We have found no appellate authority which disagrees with Ruvalcaba’s

analysis.14 It is true in R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75
Cal.App.4th 486, 497, this court stated that “[s]ection 2023 authorizes terminating

14 We found two cases permitting imposition of an evidence sanction in the first
instance: Vallbona v. Springer (1996) 43 Cal.App.4th 1525 and Do It Urself Moving &
Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27. The courts
there did not disagree with Ruvalcaba that generally a party must have disobeyed a court
order compelling discovery prior to imposition of other than a monetary sanction. Their
holdings were based on the futility of obtaining a court order where responding party,
after willfully refusing to provide documents, claimed that the documents were
nonexistent or missing. (Vallbona, supra, at p. 1548; Do It Urself Moving & Storage,
supra, at p. 36.)

sanctions in the first instance in egregious cases.” However, in R.S. Creative, the
primary issue was the appropriate sanction for intentional destruction of evidence.
(Id. at p. 494 [“This is the first reported California case to consider terminating
sanctions for spoliation of evidence . . . .”].) Moreover, at the time sanctions were
imposed, there was an outstanding order requiring a party to appear at a deposition.
Thus, R.S. Creative does not represent an example of a situation where sanctions
were imposed without evidence of violation of a court order.

Since there is no dispute that the stipulation of January 2002 was never
submitted to the court for signature, we agree that there was no order requiring
Dr. Mileikowsky to respond to the specific interrogatories and requests for
production of documents that were the subject of the dispute. The issue becomes
whether the stipulation can be seen as tantamount to the requisite order. We see no
reason why it cannot.

“A stipulation is ‘[a]n agreement between opposing counsel . . . ordinarily
entered into for the purpose of avoiding delay, trouble, or expense in the conduct
of the action,’ (Ballentine, Law Dict. (1930) p. 1235, col. 2) and serves ‘to obviate
need for proof or to narrow [the] range of litigable issues’ (Black’s Law Dict.
(6th ed. 1990) p. 1415, col. 1).” (County of Sacramento v. Workers’ Comp.
Appeals Bd. (2000) 77 Cal.App.4th 1114, 1118.) “‘A stipulation in proper form is
binding upon the parties if it is within the authority of the attorneys.’” (Bowden v.
Green (1982) 128 Cal.App.3d 65, 72.) “‘The attorney is authorized by virtue of
his employment to bind the client in procedural matters arising during the course
of the action . . . . “In retaining counsel for the prosecution or defense of a suit, the
right to do many acts in respect to the cause is embraced as ancillary, or incidental
to the general authority conferred, and among these is included the authority to
enter into stipulations and agreements in all matters of procedure during the
progress of the trial. Stipulations thus made, so far as they are simply necessary or
incidental to the management of the suit, and which affect only the procedure or

remedy as distinguished from the cause of action itself, and the essential rights of
the client, are binding on the client.”’” (Blanton v. Womancare, Inc. (1985) 38
Cal.3d 396, 403-404.) A stipulation may result in impairment of a party’s rights.
“But a poor outcome is not a principled reason to set aside a stipulation by
counsel.” (County of Sacramento v. Workers’ Comp. Appeals Bd., supra, 77
Cal.App.4th at p. 1121.)

The stipulation signed by counsel for the parties here was designed to avoid
the “trouble and expense” of yet another hearing on Dr. Mileikowsky’s failure to
respond to simple discovery requests. Like the order that would have issued, the
stipulation made clear that respondent “may file a motion for sanctions, including
but not limited to, issue, evidence or terminating sanctions, if they do not receive
[Dr. Mileikowsky’s] supplemental discovery responses by [February 15, 2002].”
By signing the stipulation, counsel essentially waived Dr. Mileikowsky’s right to
insist on a formal order compelling responses as a precursor to an issuance of
evidentiary, issue, or terminating sanctions. That the court and referee did not sign
the stipulation does not negate the fact that this was the parties’ agreement. In
view of the parties’ stipulation, the referee and the court did not err in treating the
stipulation as the order required by sections 2030 and 2031.

A decision to order terminating sanctions should not be made lightly. But
where a violation is willful, preceded by a history of abuse, and the evidence
shows that less severe sanctions would not produce compliance with the discovery
rules, the trial court is justified in imposing the ultimate sanction. (See Security
Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 98.) Here the record is
replete with evidence of Dr. Mileikowsky’s failures to answer discovery requests
despite numerous extensions sought and granted. Time and again, he refused to
respond despite the issuance of court orders and monetary sanctions. Only the
threat of terminating sanctions caused responses to be submitted. The court was

not required to allow this pattern of abuse to continue ad infinitum. It did not
abuse its discretion in ordering terminating sanctions.

Dr. Mileikowsky presents no reason for overturning the order imposing
monetary sanctions other than the invalidity of the order imposing terminating
sanctions. Because we do not agree the underlying order was invalid, we affirm
the monetary sanctions assessed.

DISPOSITION
The order for sanctions is affirmed.

CERTIFIED FOR PUBLICATION

CURRY, J.

We concur:

HASTINGS, Acting P.J.

GRIMES, J.*

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.