Judge: Anne Hwang, Case: 20STCV36299, Date: 2024-03-08 Tentative Ruling

Case Number: 20STCV36299    Hearing Date: March 8, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            On September 23, 2020, Plaintiff Debra Lawrence (“Plaintiff”) filed a complaint against Defendants Tina M. Haun and Does 1 to 10 for injuries resulting from an alleged dog bite.

            Defendant Tina M. Haun (“Defendant”) moves to compel Plaintiff’s deposition. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

“A motion under subdivision (a) [above] shall comply with both of the following:

1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

2. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

(Code Civ. Proc., § 2025.450, subd. (b).)

If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).)

MEET AND CONFER

The Declaration of Saleem K. Erakat indicates Defendant has communicated with Plaintiff’s counsel and has rescheduled Plaintiff’s deposition multiple times in an attempt to secure Plaintiff’s attendance. Therefore, the meet and confer requirement has been satisfied.

DISCUSSION

Defendant has previously noticed Plaintiff’s deposition for January 31, 2022, October 13, 2022, February 1, 2023, and March 27, 2023. (Erakat Decl. ¶ 2–8.) On January 26, 2023, Plaintiff asked to reschedule, asserting that Plaintiff was planning on having two eye surgeries in the future and could not pick a date until her surgery schedule was known. (Id. ¶ 9.)  Plaintiff canceled her March 27, 2023 deposition due to pain in her eyes. (Id. ¶ 11, Exh. H.) Defendant last noticed Plaintiff’s deposition for May 1, 2023, located at Defendant’s counsel’s office. (Id. ¶ 12, Exh. J.) Plaintiff asked that the deposition take place in a building with a defibrillator and asked the deposition to take place halfway between their offices. (Id. ¶ 13, Exh. K.) Defendant refused to reschedule the deposition and Plaintiff failed to appear. (Id. ¶ 15, Exh. M.)

In opposition, Plaintiff asserts that the deposition was at the “very limit of the seventy-five-mile rule” and that the deposition was requested to be closer due to Plaintiff’s agoraphobia. However, since Plaintiff does not argue that the location was beyond 75 miles, and no objection under Section 2025.410 was asserted, the motion to compel is granted.

Defendant seeks monetary sanctions for $1,260. The Court finds that sanctions are warranted due to Plaintiff’s failure to appear without seeking a protective order or serving any objections, but the amount requested is excessive due to the type of motion at issue. Accordingly, the Court awards monetary sanctions in the amount of $660 (two hours of attorney time plus the filing fee).

CONCLUSION AND ORDER

Accordingly, Defendant’s motion to compel Plaintiff’s deposition is GRANTED. Plaintiff shall appear for a deposition within 10 days of notice of this order.

Plaintiff and counsel of record, jointly and severally, are ordered to pay sanctions in the amount of $660 to counsel for Defendant, due payable within 30 days.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.   

TENTATIVE RULING 

BACKGROUND 

On September 23, 2020, Plaintiff Debra Lawrence (“Plaintiff”) filed a complaint against Defendants Tina M. Haun and Does 1 to 10 for injuries resulting from an alleged dog bite. 

            Defendant Tina M. Haun (“Defendant”) moves to compel Plaintiff’s independent medical examinations. Plaintiff opposes and Defendant replies.

LEGAL STANDARD  

¿ 

Physical Examination 

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220, subd. (a).)¿¿The demand must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. (Code Civ. Proc. § 2032.220(c).) The demand must also be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time. (Code Civ. Proc. § 2032.220(d).)¿ 

Code of Civil Procedure section 2032.250 provides that, when a plaintiff fails to respond to a demand, or refuses to submit to the physical examination, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. The motion must be accompanied by a meet and confer declaration.¿ 

¿  

Psychiatric Examination 

“If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.  A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”¿ (Civ. Proc., § 2032.310, subds. (a)-(b).)¿

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”¿ (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [“the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary”].) A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)¿ And “[a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (Id. at p. 839.)¿¿¿ 

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿¿¿ 

MEET AND CONFER 

The Declaration of Saleem K. Erakat indicates Defendant has communicated with Plaintiff’s counsel and has rescheduled Plaintiff’s examinations. Therefore, it appears Defendant’s counsel made good faith attempts to resolve the issue.  

DISCUSSION 

Here, Plaintiff alleges physical injuries resulting from the dog bite and mental trauma, including anxiety and depression. (Erakat Decl. ¶ 2, Exh. A.) Defendant seeks to compel a physical examination and psychiatric examination.  Defendant previously noticed these examinations for February 14, 2022 and February 18, 2022.[1] (Id. ¶ 3.) Plaintiff objected to both examinations due to COVID restrictions and a compromised immunity. (Id. ¶ 4.) The examinations were taken off calendar. Later, the examinations were re-noticed for October 17, 2022 and October 18, 2022. (Id. ¶ 8, Exh. G, H.) The parties agreed to continue trial instead. Later, after discussing Plaintiff’s eye surgery schedule, Defendant noticed the psychiatric examination for May 2, 2023 (Exh. M) and the physical examination for May 8, 2023. (Id. ¶ 14, Exh. N.) Plaintiff’s counsel requested that the examinations be moved in favor of a trial continuance. Defendant refused. Plaintiff failed to appear for the psychiatric examination on May 2, 2023. (Id. ¶ 18.)

Turning first to the physical examination, the evidence shows that Defendant served notice of a physical exam by Dr. Tracey Childs, a general surgeon, at an office in Santa Monica. In opposition, Plaintiff argues that she suffers from agoraphobia and has not traveled over twenty miles from her residence since the dog incident. (Lipton Decl. ¶ 2.) While Plaintiff appears to seek a location within Los Angeles, Plaintiff has not asserted authority to justify a change. (See Lipton Decl. ¶ 8.) Moreover, according to Defendant, the location of the physical examination is approximately 22 miles from Plaintiff’s home. (Reply at p. 2.) Since Defendant is entitled to one physical examination, and the May 8, 2023 demand is proper, the motion to compel is granted.

When seeking leave to conduct a mental examination, the party seeking leave must state the time, place, manner, conditions, scope, and nature of the examination fully and in detail. This means listing each by name. (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 260.) In Carpenter, the court discussed the heightened risk of intrusion that a mental examination could pose. (Id. at 261 [“Requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant's need for a meaningful opportunity to test the plaintiff's claims of physical or mental injury.”].) Additionally, the specificity and clarity of the order aids the examiner in complying with the parameters imposed by the court. (Id.)¿¿ 

 Here, Defendant’s motion does not state the time and place of the proposed psychiatric examination. Additionally, the demand that Defendant previously served (Exh. M) does not list the specific tests of the examination by name. Therefore, because Defendant has not followed the rules set out in section 2032.310(b) and Carpenter, the motion to compel the psychiatric examination of Plaintiff is denied as procedurally defective. 

CONCLUSION AND ORDER 

Defendant’s motion to compel the physical examination of Plaintiff is GRANTED. Plaintiff is ordered to appear for examination within 30 days of this order or at a later date stipulated by the parties.

Defendant’s motion to compel the psychiatric examination of Plaintiff is DENIED.   

Defendant shall provide notice of the Court’s order and file a proof of service of such.