California Civil Litigation: Motion to Compel Discovery: When my opponent obtains an (unfair) sanction against me for (justly) refusing to produce certain documents, what can I do to fight it or I hv to shut up and pay?
State/Country relating to question: California
I'm sorry to hear this.I have to ask if the sanctions were over $5,000.00.Did you believe that the documents were privileged?N Cal Attorney41030.3204056366
U helped B4, about a year ago. Remember me?
What do U mean by "priviledge"
The sanction is $400 for attorney's fee in filing the motion.
I refused to respond to discovery bcs the opponent himself resisted discovery.
I demanded that he had to show good faith first.
CCP 2019.02 (b):
Notwithstanding subdivision (a), on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice. (Emphasis added)
But this is a corrupt judge who only repeats the bad (but rich) guy throughout the time (2 yrs) in everything.
Yes, I do remember the question about disqualification.An example of privileged documents would be psychiatric or medical reports or tax returns or certain documents prepared by an attorney.A sanction under $5,000 is not an appealable order but it can be reviewed by filing a petition for an extraordinary writ in the Court of Appeal, but the Court of Appeal does not have to hear the petition and probably will not hear a writ arising from a discovery dispute unless a party is claiming some privilege is at issue.The sanction order is appealable on appeal from the final judgment.I hope this information is helpful.
What do U mean by B4 the last sentence "The sanction order is appealable on appeal from the final judgment" ?
When the case is over there will be a final judgment. Even if you win the case, you can appeal from the sanctions order after the final judgment is entered.
1) But the order asks me "to pay w/in 30 days from Defendant's filing and service of the Notice of Entry of Order" Based on on U said (that the amount was not big enough for appeal), does that mean I hv to shut up /pay the bad guy?
2) What may happen if I ignore it /dont pay?
Yes you do have to obey the order and can be cited for contempt if you refuse to pay, unless you file a petition for a writ with the Court of Appeal and request that the order be stayed pending disposition of the writ petition.The costs and filing fee to file a writ petition would be more than the amount you were sanctioned.
My last Q. I hv changed my user name. How did U recognize me?
My searchable archived answers have it under your current user name.
Does that means my change of name makes no difference bcs people can trace it from my previous one?
I'm going to bed now. Wl accept yr A. tmrw.
Many thnks/Good nite
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Thank you for accepting my answer.
In a healthcare fraud case, what would be
Would they be any different from medical Negligence or the concept apply equally?
I'm waiting for expert
It's really hard to give a meaningful answer to an abstract question, but I'll try.Fraud is not the same thing as negligence.Actual damages are damages normally flowing from the type of breach of duty at issue in the case.Special damages are actual damages but not of a type that necessarily flow from the breach of duty.Consequential damages are actual damages that were caused by the breach of duty but are a more remote result.If person X is injured, his spouse's lost wages incurred because she was caring for the injured person could be called consequential damages although that phrase usually refers to damages remotely caused by a breach of contract.I hope this information is helpful.
OK my friend, let's hv a concrete situation:
The surgeon lied and pretended to me that an unneeded/harmful surgery is needed and almost harmless. After doing it he fabricated all the reasons for surgery and fabricated the informed consent on the medical record. The purpose was simply to get the money from the medical insurance.
The harms are chronic pain for years w/ the high chance of permanency, lowering of quality of life, some loss of income due to the severe pain for a few monhts, some costs of pain treatment but treatment ended because no cure, may require future surgery with much pain /high risks.
1) If this is treated as a Fraud, then how do U categorize the above damages into XXXXX?
2) If this is treated as Negligence, then how? Or no difference?
3) Assuming these facts, can this case be tried as Negligence at all (or it will definitely be a mistrial)?
I go to bed now, so I wl lk fr yr A. tmrrw.
Those are all actual damages but the out of pocket bills and any lost income would be called special damages in California. The damages are treated the same whether the case was filed for negligence or for fraud or for both.What you described sounds like fraud and not merely negligence. You wrote that the surgeon lied to induce you to have unnecessary surgery, and that is intentional fraud, not just careless negligence. Although it is possible that the surgeon was negligent in the manner in which the surgery was carried out, but no one can tell if that happened without reviewing all the medical records.You can get a free consultation from some of the medical malpractice lawyers listed by location athttp://lawyers.findlaw.com/lawyer/practicestate/Medical-Malpractice/CaliforniaPlease follow up on this with a local attorney.
W'll hv a longer session/ hence a bonus for U at the end.
1) So can I say that
Pain/ Suffering = Actual damage.
Financial loss (income, doctor's fee, attorneys' fee, etc)= Special Damage
Future possible costs+possible worsening medical condition= Consequential
but how can we quantify something not yet happens? Or may be such possible (not actual) harm/costs cannot be claimed?
2) After Discovery is completed. How many more steps does Plaintiff hv to go thru B4 the trial?
3) What's the maximum time Defendant can postpone the trial (Pls cite)
4) Can we present the entire transcript of deposition to the jury or can the defense block the undesirable portions? (Pls cite)
5) Can U exercize the peremptory challenge to remove a judge without cause?
I understand that Yes U can do it once (the silver bullet CCP170.6) not less than 10 days B4 the trial begins; but another attorney said No that silver bullet can be used only shortly after U file the Complaint. After that U must file Declarations for Disqualification per CCP 170.1 which exists only in theory bcs people rarely succeed.
Future medical costs are also special damages. Not every case has consequential damages and as long as the complaint describes the damages they do not have to be characterized as general or special or consequential.It can take years to get a trial and the case can be thrown out if it is not tried within 5 years.The jury is usually read the relevant portions of deposition transcripts and is not given the entire transcript.Yes, you get one magic bullet under CCP § 170.6, posted athttp://leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=170-170.9Determining when a peremptory challenge is timely is not always simple as it depends on the type of assignment system used in the particular superior court, seehttp://www2.courtinfo.ca.gov/protem/pubs/bg02.pdf under6. Time Limits for Peremptory Challengea. [§2.42] Time Limits Generally; Chartb. [§2.43] Master Calendar Assignmentc. [§2.44] Assignment to Judge for All Purposesd. [§2.45] Assignment to Judge for Less Than All Purposes (“10-Day/5-Day Rule”)e. [§2.46] Assignment to Department Rather Than to Judgef. [§2.47] Tentative Rulingsg. [§2.48] One-Judge CourtI hope this information is helpful.
From yr answer,
1) If the future medical potential medical cost and further possible body harm is Special damage, then can U /how do U quantify in $ bcs they hv not happened?
2) If a case can thrown out after 5 yrs, then U mean yr opponent can play tricks to keep postponing it to exhaust the 5-yr limit in order to throw U out? (Pls cite)
3) From yr link:
means exactly what the other attorney told me: that U hv only 15 days from the date of assignment.
(15-day limit is a self-defeating mechanism bcs obviously who would know the need for disqualification so early?! As I become more involved, I hv bn shocked to find out a jungle of similar self-defeating mechanisms in this system)
1- The plaintiff needs expert testimony as to the probably need for and cost of future medical procedures necessitated by the injury.2-Code of Civil Procedure § 583.310. An action shall be brought to trial within five yearsafter the action is commenced against the defendant.Fromhttp://leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=583.310-583.360
I didn't hv time in the last couple days. Now back to this subject:
1) Yr A. #1 above:
-So U mean the expert can but I cannot (?) suggest the future potential costs?
-It is in category of Special damage?
-I forgot to mention that the past medical expenses have been covered by my medical insurance, but can I claim them among the Special damage for restitution that as well?
2) Yr A.#2: Back to my original Q: Does that mean the defense can play tricks to drag it beyond 5 yrs in order to dismiss the case on that ground?
3) Back to my original Q.: The other attorney is correct: PEREMPTORY challenge is over due to the 15-day limitation: As U cited above: c. [§2.44] Assignment to Judge for All Purposes (?)
4) In yr first Q, U indicate that the fee for appealing the sanction may exceed the sanction itself, but exactly how much is that fee?
http://www.courts.ca.gov/documents/app001.pdfstates the initial fees are $755.If the case was assigned to one judge for all purposes then the 15 day rule applies.The defense can try to drag it out so you miss the 5 year deadline but you should be able to get a trial date within 5 years no matter what the defense does.Expert testimony is required to estimate the necessity for and amount of future medical costs.You can recover for medical expenses that were paid by an insurer, but your insurer might have a reimbursement clause in the policy.
-If I refuse to pay the unlawful sanction, who would press the contempt charge: the court or the bad guy?
-If the bad guy shuts up, then will the sanction go to the trash can?
(He did last time when I refused to pay the remittur order on the same ground that the court granted his nonsense motion)
-If somebody pushes the contempt charge, then who will decide?
-Yr last sentence above is interesting: "You can recover for medical expenses that were paid by an insurer" : PLEASE CITE
The other party would initiate a contempt citation, and it would be decided by the Court.http://knowledgebase.findlaw.com/kb/2009/Jun/1293881_2.htmlstates:The collateral source rule is an evidentiary rule; it bars defendants in a personal injury case from introducing evidence of money the plaintiff received from collateral sources.That article notes that the rule has been eroded to some extent. The most recent case that addressed this is Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 54, posted athttp://login.findlaw.com/scripts/callaw?dest=ca/cal4th/52/541.htmlI feel that this thread is getting too long, and I believe Just Answer prefers it if people post each new question in a separate thread. You can request me by putting N Cal Atty in the subject line of any future questions.
1) From yr first sentence: U mean the contempt charge wl b decided by the same court that granted the nonsense motion in the first place (This doesn't mk sense to me)?
2) Many thanks for the wonderful link on Colateral Source rule.
My confusion is enhanced by the conflict of two rules that U cited.
FACT: THE MEDICAL INSURANCE ALREADY PAID 100% OF THE HOSPITAL BILL.
THE PREVIOUS RULE Although the hospital bill was 100% paid by my medical insurance, I am still entittled to the damage restitution equal the amount that amount bcs the court wanted to deny the offender the benefit of the victim's insurance.
THE NEW RULE: No I cannot claim it bcs it did not represent my financial loss.
So now the new rule may likely prevail?
After this segment, we can close this session w/ bonus of course.
The person cited for contempt can request that the contempt be heard by a Judge other than the Judge who issued the order the person was cited for violating but the law on this is not clear. It seems clear that if the Judge initiates the contempt action, he should not also preside at the contempt hearing.The contempt benchguide athttp://www2.courtinfo.ca.gov/protem/pubs/bg03.pdfnotes that the Court itself can initiate a contempt proceeding, and states:D. [§3.8] Checklist: Indirect Contempt Procedure(1) Consider preliminary determinations:• Are there grounds for disqualification under CCP §§170–170.6 and Briggs v Superior Court (1931) 211 C 619, 629, 297 P 3?Briggs is available throughhttp://www.lexisnexis.com/clients/CACourts/?IN RE MURCHISON, 349 U.S. 133 (1955) posted athttp://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=349&invol=133put limits on the ability of a judge to try a contempt action that was initiated by the same judge, but I have seen judges hear contempt actions based on an alleged violation of an order signed by the same judge, and judges have the power to summarily punish for a contempt committed in their immediate presence that disrupts the proceedings, with no prior notice to the person held in contempt.http://leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1209-1222 has many of the contempt statutes referred to inhttp://www2.courtinfo.ca.gov/protem/pubs/bg03.pdfAs the collateral source rule has been recently adjusted, it appears that you are still entitled to recover the amounts your insurer actually paid to settle the medical bills and not necessarily the face amounts of the medical bills. Howell was a workers comp case and does not automatically apply to other types of policies. So my opinion is as stated in the above paragraph.I hope this answers your last two questions.
WONDERFUL. WE CAN END THIS SESSION HERE. GREAT MANY THANKS.
Thank you for accepting my answer, and thank you very much for the bonus!
2) What can I do if defendant (of course) denies them?
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