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Court of Appeal, Second District, Division 5, California.

Richard D. TOTTER, Plaintiff and Appellant, v. ST. MARY'S HOSPITAL, et al., Defendants and Respondents.

Civ. 68504.

Decided: July 21, 1983

Richard D. Totter, in pro. per. Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Michael J. Brady and Jonathan Lee Willis, Redwood City, for defendant and respondent Stanford University Medical Center. Lynch & Loofbourrow and James Parton III, San Francisco, for defendant and respondent J.T. Fitzgerald, M.D. Hassard, Bonnington, Rogers & Huber, and Patricia J. Doran, San Francisco, for defendants and respondents Warren Breidenbach, M.D. and Douglas K. Duncan, M.D.

This is an appeal from a judgment of dismissal based upon plaintiff's (1) failure to diligently prosecute the action (Code Civ.Proc., § 583(a)) and (2) failure to comply with discovery orders (Code Civ.Proc., § 2034(b)).

On July 26, 1974, plaintiff and appellant Richard D. Totter, an attorney, filed this action in pro per, seeking damages for personal injuries sustained as a result of defendants' alleged medical malpractice on or about July 31, 1973.   Named as defendants were St. Mary's Hospital, Stanford University Medical Center, Doctors J.R. Fitzgerald and Douglas K. Duncan, and numerous Doe defendants.

In June of 1977, Totter retained the services of attorney Michael Keady, who obtained leave of court to file a Second Amended Complaint.   The Second Amended Complaint, prepared by attorney Keady, named several additional defendants, including those formerly named as Does and added as defendants by a prior amendment to the complaint:  Palo Alto Medical Clinic, Doctors Lawrence Turley, Warren Breidenbach and Joel Friedman, and the University of Kentucky.

None of the defendants had been served prior to the filing of the Second Amended Complaint.   However, service was effected upon most of the defendants in June and July 1977, just prior to the expiration of the three-year period within which Totter was required to effect service or have the action dismissed (Code Civ.Proc., § 581a(a)).1  Thus, for all practical purposes, prosecution of the action did not begin until three years after the original complaint was filed.

Both sides commenced discovery during the Fall of 1977.   Totter noticed the deposition of Dr. Fitzgerald for November 2, 1977.  (The deposition was postponed several times but was eventually taken in July 1978.)   An At-Issue Memorandum was filed in January 1978.   Totter also prepared and served two sets of interrogatories:  one set, consisting of three questions, to St. Mary's and another set, consisting of 32 questions, to Dr. Fitzgerald.   There was no discovery conducted as to any of the other defendants until late April 1979, after Totter had successfully opposed a motion to dismiss for lack of prosecution brought by defendants Breidenbach and Duncan.2

Dr. Fitzgerald propounded two sets of interrogatories to Totter, one set on September 8, 1977, and another set on February 28, 1978.   Totter answered the first set within 60 days, but because Fitzgerald was not satisfied with many of the answers he brought a motion to compel further answers on January 18, 1978.   The record does not disclose the outcome of this motion.   Both sets of interrogatories were finally answered to Fitzgerald's satisfaction on September 18, 1978 and October 12, 1978, respectively.   This was eight months to one year after the interrogatories were served.

Defendants commenced Totter's deposition on August 5, 1978.   The deposition continued for four more sessions (November 30, 1978, February 16, 1979, April 16, 1979 and April 24, 1979).   The continuances were necessary because defendants were unsatisfied with the information given by Totter in response to questions about his claim for lost income in the Second Amended Complaint.   Defendants requested copies of Totter's tax returns, but Totter refused to produce them, claiming they were privileged.   This dispute prompted the various discovery orders discussed in section II, infra.

Since the five-year limitation period imposed by Code of Civil Procedure section 583(b) 3 was fast approaching, Totter noticed a motion, to be heard on April 6, 1979, to advance the case for trial to a date prior to July 26, 1979.   At the same time, defendants Breidenbach and Duncan filed a motion to dismiss under Code of Civil Procedure section 583(a).4  Totter prevailed on the motions to advance, and the case was set for trial on July 9, 1979.   The court deferred ruling on defendants' motion to dismiss, and continued the hearing on those motions to April 27, 1979.

Meanwhile, the discovery battle was still raging.   On April 9, 1979, Totter's counsel sought permission to withdraw as attorneys of record, claiming that Totter had been uncooperative and had failed to follow their legal advice, resulting in “substantial extra work resisting defendants' motions regarding proof of plaintiff's claim for loss of earnings.”   Counsel also sought a protective order postponing the taking of Totter's deposition (fourth session) on April 16th, in order to give Totter time to retain new counsel.   Defendants opposed postponement of the deposition on the ground that the trial date was fast approaching.   The court allowed counsel to withdraw as attorneys of record after the scheduled deposition on April 16, 1979.   Thereafter, Totter proceeded in pro per.

The motion to dismiss, which was finally heard on May 22, 1979, was joined in by all defendants.   The motion of Doctors Breidenbach and Duncan was supported in part by a declaration from Totter's former attorney, Arlene Halvorsen of the Keady firm, relating to Totter's failure to cooperate with his attorneys in complying with the February 16th order to produce tax records.   Defendants' motions to dismiss were granted on two grounds:  failure to prosecute (Code Civ.Proc., § 583(a)) and failure to comply with discovery orders (§ 2034(b)).   Judgment was entered as to all defendants on June 4, 1979.5

 Under the well-established principles of appellate review, we must affirm if either theory under which dismissal was granted is valid, or if there is any other sound basis for dismissal.  (D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 18–19, 112 Cal.Rptr. 786, 520 P.2d 10.)   Having determined that the trial court was correct on both grounds, we affirm the judgment.

I. Failure to Prosecute

 The purpose behind the provisions in Code of Civil Procedure section 583(a) for discretionary dismissal for delay in bringing an action to trial is to compel reasonable diligence in the prosecution of an action after it has been commenced, thereby extending to the party or parties against whom it is brought an opportunity to properly present any defense which may be available at the time of commencement of the action.  (Feingersh v. Lutheran Hospital Society of Southern California, 66 Cal.App.3d 406, 411, 136 Cal.Rptr. 155.)   The trial court exercises its discretion as to dismissal for lack of prosecution by reference to the factors set forth in rule 203.5(e) of the California Rules of Court.6  In addition, the court must consider the length of time between the filing of the complaint and the motion to dismiss, bearing in mind that as the time passes from two years nearer and nearer to five, the showing required to excuse a failure to bring a case to trial grows greater and greater.  (Ibid.)  “The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.”  (Kunzler v. Karde, 109 Cal.App.3d 683, 687, 167 Cal.Rptr. 425.)

 Here, Totter's delay of nearly three years in effecting service of process on the defendants is significant.   This delay put the defendants at a disadvantage from the beginning since they were required to defend against negligent acts which allegedly occurred some four years before.  “Delay in effecting service constitutes a particularly pernicious form of delay in terms of potential prejudice, for the defendant during the period of that delay may be unaware that the action has been filed and thus not alerted to the necessity for making discovery, interviewing witnesses and preserving evidence essential to his defense.”  (Lopez v. Larson, 91 Cal.App.3d 383, 402–403, 153 Cal.Rptr. 912.)   Totter attributes the three-year delay between filing the complaint and effecting service of process to (1) his illness, (2) the time required to garner necessary medical information, including research which he conducted on his own behalf, and (3) his unsuccessful efforts in obtaining legal representation until late 1976.   None of these reasons, however, excuse the long delay in serving the defendants, all of whom were local physicians and hospitals and presumably amenable to service during that time.   While Totter was accumulating information to substantiate his claim, defendants were deprived of the opportunity to defend against that claim.

Although Totter did conduct some discovery in 1977 and 1978, as noted above, it appears that the bulk of his efforts during the pendency of the lawsuit consisted of attempts (purposeful or otherwise) to hinder and delay defendants' discovery process.7  This is evident from the Register of Actions in this case, which is part of the record on appeal.

 In attacking the court's ruling, Totter makes several technical arguments, none of which have merit.   He first claims that the court erred in granting defendants' motion for an order shortening time, thereby giving him only three days' notice of the motion to dismiss.8  However, such orders shortening time are specifically authorized by statute (Code Civ.Proc., § 1005), and have been deemed appropriate in situations precisely like the one here.   As the court stated in Farrar v. McCormick, 25 Cal.App.3d 701, at p. 705, 102 Cal.Rptr. 190:

“We are directed to neither case nor statute indicating that the statutory authority to shorten time was intended not to apply to motions made under Code of Civil Procedure, section 583, subdivision (a).   The increase from 10 days' to 45 days' notice accomplished by rule 203.5 was intended to afford a plaintiff ample time within which to complete any necessary preparation and move to set his case for trial, if so inclined.   Here, plaintiff already had such a motion on file, so that he was unaffected by the shortened notice of defendants' motion;  he suffered no prejudice thereby.”

 Totter further contends that because the court granted his motion to advance the trial date, it was estopped from granting defendants' motion to dismiss under section 583(a).   Once again, this contention is contrary to case law.  (Kunzler v. Karde, supra, 109 Cal.App.3d 683, 167 Cal.Rptr. 425;  Atkinson v. County of Los Angeles, 180 Cal.App.2d 467, 473, 4 Cal.Rptr. 423.)   The Atkinson case also disposes of Totter's contention that defendants' demand for trial by jury precluded the granting of their motion to dismiss.  (180 Cal.App.2d at p. 473, 4 Cal.Rptr. 423.)

 Totter's last contention, that the court failed to consider all of the factors relevant to a proper determination of the motion (rule 203.5), deserves only passing mention, as it relates to issues which Totter claims were “not adequately treated below because no materials were before the court on them.”   It was, of course, Totter's burden to place such issues before the court, and having failed to do so, he cannot raise them here.

2. The second ground on which defendants' motion to dismiss was granted was Totter's failure to comply with discovery orders (Code Civ.Proc., § 2034(b)).   As we stated above, this issue arose over a dispute regarding Totter's claim for lost income.

The first session of Totter's deposition was noticed for August 5, 1978, by counsel for defendant Fitzgerald.   Pursuant to a subpoena duces tecum, Totter was ordered to bring with him to the deposition documents relating to, among other things, his claim for lost income.   Totter did not produce the documents, so his deposition was continued.

In the second session of Totter's deposition, held on November 28, 1978, Totter stated that the amount of lost income which he was claiming had not yet been calculated, and any estimate which he could give would just be a “wild guess.”   This was no doubt due to Totter's cavalier method of recording fees received on yellow legal pads most of which were not readily accessible, if they existed at all.   Totter was likewise unable to estimate the number of hours he had devoted to his law practice during the relevant period of time.   It appeared, therefore, that the only records which would accurately reflect Totter's income for the period in question were his income tax returns.   Totter, however, refused to produce such returns, claiming they were privileged.

Totter's deposition was continued once again, to February 16, 1979.   Pursuant to Fitzgerald's motion to compel production of documents heard on February 15, 1979, Totter was ordered to either (1) withdraw his claim for damages for lost earnings, or (2) produce that portion of his income tax records showing the amount of his earnings for the years 1972–1977 which were in his possession, custody or control.   Totter failed to do either, once again claiming that the tax returns were privileged.

In response to a letter from Fitzgerald's counsel threatening a motion to strike Totter's claim for lost income, Totter submitted, on March 23, 1979, an undocumented summary, typed on his stationery, of the income, expenses and net profit or loss from his law practice during the years 1972 through 1977.   He also submitted two pages purporting to be Xerox copies of portions of his income tax returns.   However, these failed to show Totter's name, a declaration under penalty of perjury that the information was correct, or even whether they were photocopies of documents actually submitted to the Internal Revenue Service.

On April 5, 1979, Fitzgerald moved to strike Totter's claim for lost earnings or, in the alternative, for an order requiring Totter to produce his tax records for the years 1972–1977, including page 1 of the return and Schedule C (profit and loss from business operated as a sole proprietorship), and the portion of the returns which showed Totter's name, social security number, and signature under penalty of perjury that the information contained in the returns was true and correct.   The court denied the motion to strike the claim for lost income, but ordered Totter to produce the requested documents no later than 5 p.m. on April 12, 1979.   The documents were not produced by the deadline or at the fourth session of Totter's deposition held on April 16, 1979.

On May 4, 1979, in a continued hearing on defendants' motion to dismiss under section 2034(b), the court gave Totter yet another chance to comply with the court's discovery order, and denied the motion to dismiss on condition that Totter produce the requested information by May 14, 1979.   Totter once again failed to produce the information.

Thus, when defendants' motions to dismiss were finally heard on May 22, 1979, Totter had disobeyed three separate court orders to produce his tax records.   The court therefore imposed the “ultimate sanction” of dismissal.

 There is no question of the power of the court to apply the ultimate sanction of default against a litigant who persists in an outright refusal to comply with his discovery obligations.  (Peterson v. City of Vallejo, 259 Cal.App.2d 757, 781, 66 Cal.Rptr. 776, citing Fred Howland Co. v. Superior Court, 244 Cal.App.2d 605, 53 Cal.Rptr. 341.)   In Deyo v. Kilbourne, 84 Cal.App.3d 771, 149 Cal.Rptr. 499, a case involving the failure to answer interrogatories, the court set forth some of the factors to be considered by the court in determining whether the ultimate sanction should be imposed.   These factors include (1) the passage of time since the discovery was first sought, (2) whether the party was previously given a voluntary extension of time, (3) the amount of information sought, (4) whether the information sought was difficult to obtain, (5) whether the information supplied was evasive and incomplete, (6) the number of questions remaining unanswered, (7) whether the questions which remain unanswered are material to a particular claim or defense, (8) whether the answering party has acted in good faith, and with reasonable diligence, (9) the existence of prior orders compelling discovery and the answering party's response thereto, (10) whether the party was unable to comply with the previous order of the court, (11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and (12) whether a sanction short of dismissal or default would be appropriate to the dereliction.  (84 Cal.App.3d at pp. 796–797, 149 Cal.Rptr. 499.)

An application of these factors to the present case compels the conclusion that the court below acted properly in ordering dismissal.

 It should be noted that the request to produce tax records was made only after it became clear that Totter could not produce any other concrete data related to his income during the relevant time period.   For reasons which we stated above, the income information, including the undocumented “summary” which Totter provided in response to the motion to compel, was insufficient.   Of course, Totter was given the option of withdrawing his claim for lost income, which would seem to have been a viable option in view of the statement in his opening brief on appeal that during the period in question his income “went up post incident, generally, not down.”

 Yet Totter, himself an attorney, chose to repeatedly disobey court orders, basing his refusal upon his claim of privilege.   This argument was repeatedly rejected by the trial court and is likewise rejected here.   Totter waived any privilege which may have existed when he put the contents of his tax returns in issue by asserting a claim for lost income.  (Newsom v. City of Oakland, 37 Cal.App.3d 1050, 112 Cal.Rptr. 890.)   In Newsom, the plaintiff sued for injuries sustained in a motor vehicle accident and sought damages for lost income.   At trial, the plaintiff testified that he had no records to substantiate his earnings prior to the accident.   The court overruled an objection, based upon the privilege against self-incrimination, to a question asking whether the plaintiff had filed state and federal income tax returns for the period in question.   The court carefully explained its ruling to the jury, pointing out that the plaintiff had a choice of answering the question or withdrawing his claim for earnings, and “couldn't have his cake and eat it too.”

In rejecting the plaintiff's claim that the trial court had committed prejudicial error by forcing him to disclose that he had not filed income tax returns for certain years, the Court of Appeal stated:

“To permit a plaintiff to obtain the relief he sought of the court while refusing, on the ground of privilege, to testify concerning matters which, if known, could prevent his recovering, has appeared manifestly unfair to some courts․  [S]ome jurisdictions have shown a disinclination to permit either plaintiff or defendant to prevail while drawing around himself this cloak of privilege.”  (37 Cal.App.3d at pp. 1056–1057, 112 Cal.Rptr. 890.)

The ultimate sanction of dismissal, while drastic, was appropriate in this case.  “The most severe in the spectrum of sanctions must be available in appropriate cases not only to penalize those whose conduct may be deemed to warrant such a sanction, but also to deter those who might be tempted to flaunt discovery orders.  [Citation.]  The judicial system cannot tolerate litigants who flagrantly refuse to comply with orders of the court and who refuse to permit discovery.   For delay and evasion are added burdens on litigation causing a waste of judicial and legal time, are unfair to the litigants, and offend the administration of justice.  [Citation.]”  (Deyo v. Kilbourne, supra, 84 Cal.App.3d 771, 793 [fn. 26], 149 Cal.Rptr. 499.)

 Here, Totter's stubborn refusal to obey three separate court orders, even after he was abandoned by his counsel over his refusal to comply, and after he knew a motion to dismiss was pending, “reflects his evasiveness and lack of good faith, arrogant insolent attitude toward the judicial process, dilatory tactics and attempt to play ‘fast and loose’ with the court.”   (Stein v. Hassen, 34 Cal.App.3d 294, 302, 109 Cal.Rptr. 321.) 9  The court properly imposed the “ultimate sanction” of dismissal.

The judgment is affirmed.


1.   Defendants Friedman and Palo Alto were in fact dismissed due to lack of service on January 18, 1978.   Defendant University of Kentucky was dismissed at appellant's request on January 26, 1978.

2.   In 1977 appellant did notice the depositions of two nonparties, Marina Sushkoff and Corazon Refuerzo, but these depositions were postponed several times due to scheduling conflicts, and were not rescheduled after the last postponement.

3.   Section 583(b) provides:  “Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended.”

4.   Section 583(a) provides in pertinent part:  “The court, in its discretion, on motion of a party or on its own motion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed.”

5.   On January 7, 1980, the appeal was abandoned as to defendants St. Mary's and Turley.   The four remaining defendants, respondents in this appeal, are Stanford and Doctors Duncan, Breidenbach and Fitzgerald.

6.   That portion of the rule provides that “the court shall consider all matters relevant to a proper determination of the motion, including the court's file in the case and the affidavits and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;  the extent to which the parties engaged in any settlement negotiations or discussions;  the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;  the nature and complexity of the case;  the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;  the nature of any extensions of time or other delay attributable to either party;  the condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial;  whether the interests of justice are best served by dismissal or trial of the case or by imposing conditions on its dismissal or trial;  and any other fact or circumstance relevant to a fair determination of the issue.”

7.   In his opposition to defendants' motion to dismiss, Totter claimed that although he was represented by counsel from September 1976 until April 1979, he “did not control the litigation” during that time, and although he promptly responded to requests of counsel, he was “not fully aware of what has or has not been done in this matter during that time.”   This claim seems dubious, in view of the fact that Totter is himself an attorney, and in any event it would not excuse his actions here.

8.   California Rules of Court, rule 203.5(a), provides for a notice period of 45 days.   By some mathematical process which escapes us, Totter has miscalculated the notice period as 80 days.

9.   We also note that although at one time he expressed an intention to do so, Totter never challenged any of the court's orders by way of a petition for extraordinary relief in this court.  (Id. at p. 299, 109 Cal.Rptr. 321.)

HASTINGS, Associate Justice.

STEPHENS, Acting P.J., and ASHBY, J., concur. Hearing denied;  MOSK, J., dissenting.