Judge Anne Hwang, Case Number: 21STCV04697, Date: 2023-08-04 Tentative Ruling

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.

On February 5, 2021, Plaintiff Mihailo Stanic (Plaintiff) filed a complaint against Defendants Wilshire Skyline, Inc., 6401 Wilshire Boulevard, LLC, and Sergio Gabriel Macias Gutierrez (Defendants) for injuries resulting from a bicyclist/motor vehicle accident.

On August 4, 2023, the Court granted a motion to compel Plaintiff’s psychological examination with Dr. Judy Ho within 30 days of notice of the order. Defendants served a notice of the examination on August 4, 2023, scheduled for August 30, 2023 and September 1, 2023. (Partida Decl. ¶ 5.) Attached to the notice was exhibit ‘A” which contained requirements for the examination. The requirement at issue here states that if Plaintiff attends the examination remotely, he must be physically present in California, per Dr. Ho’s license to practice. (Id. ¶ 5, Exh. B.) On August 28, 2023, Plaintiff asserted that he would appear for the exam remotely but from Serbia. (Id. ¶ 8, Exh. E.) Plaintiff contends he moved to Serbia in April 2023 and resides there. Defendants allege that since Plaintiff’s location was never raised in opposition to the original motion to compel, it has been waived. Still, Defendants offered to pay Plaintiff’s reasonable travel costs, but Plaintiff did not respond. (Id. ¶ 9.) Defendants also allege that Plaintiff’s discovery responses and a Westlaw search indicate that he lives in California. (Id., Exh. F.)

If a party is required to submit to a physical or mental examination and fails to submit, a court may impose issue, evidence, or terminating sanctions against the party who failed to appear. (Code Civ. Proc., section 2032.410.) A court may impose monetary sanctions in lieu of or in addition to non-monetary sanctions. (Id.)

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)

A court should select sanctions that are tailored to the harm caused by the misuse of the discovery process that should not exceed what is required to protect the party harmed by that misuse. (Department of Forestry & Fire Protection v Howell (2017) 18 CA5th 154, 191, disapproved on other grounds.) Sanctions should generally be imposed in an incremental approach, with terminating sanctions being the last resort. (Id.)

The Court overrules Defendants’ objection to the Declaration of Lawrence D. Marks.

As an initial matter, the Court notes that Defendants specified in the Notice of Motion that this motion was made pursuant to Code of Civil Procedure sections 2024.010, et seq. and 2024.050. (See Code Civ. Proc. § 1010.) However, based on the memorandum, the motion appears to be based on Code of Civil Procedure section 2032.410 for failure to comply with a court order. While a court may generally only consider the grounds stated in the notice of motion, “[a]n omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought.” (Luri v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1125.) Therefore, the motion will be analyzed pursuant to section 2032.410.

The initial motion to compel examination attached as Exhibit F a demand for independent psychological examination, which attached Exhibit A, containing the “date and location” of the examination. (See Motion for Independent Psychological Examination [hereinafter “Motion”], Exh. F [“The plaintiff agrees they will physically be in the state of California for the telehealth evaluation, as that is the requirements of Dr. Ho’s California license to practice.”].) A meet and confer letter also specified the location. (Motion at Exh. G, p. 63.) In opposition to the original motion, Plaintiff did not raise any objection to the location of the examination.[1] In addition, no motion for reconsideration or any other motion raising an objection was filed. Accordingly, the Court finds that Plaintiff has waived any objection to the location of the examination or the payment of costs. The Court therefore grants Defendants’ motion to compel.

Although the Court would be inclined to find that there was no substantial justification for the refusal to abide by the Court’s order compelling the examination, Defendants’ notice of motion does not specify what sanctions are requested and as to whom.[2] Accordingly, the request for sanctions is denied as procedurally defective. (See, e.g., Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207-08.)

Therefore, the Court GRANTS Defendants’ motion to compel Plaintiff’s psychological examination and DENIES the motion for sanctions. Plaintiff is ordered to appear at a psychological examination within 30 days.

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

[1] Although Plaintiff appears to fault Defendants for not raising the travel issue, Plaintiff provides no explanation for how Defendants were to know that Plaintiff permanently resides in Serbia. Moreover, for purposes of this motion, Plaintiff has not provided a declaration under penalty of perjury that he resides in Serbia.

Plaintiff further argues that Plaintiff opposed the motion “in its entirety,” and therefore “had no reason to address any line-item content or specific terms within Defendants’ Demand for Psychological Examination.” (Opposition at p. 8.) Plaintiff’s position results in an inefficient use of court time and a waste of resources.

[2] The title of the motion itself requests sanctions in the alternative to the motion to compel.

DEPT:	32
HEARING DATE:	October 26, 2023
CASE NUMBER:	21STCV04697
MOTIONS:	Motion to Compel Plaintiff’s Psychological Examination, or in the alternative, for Terminating, Issue, or Evidentiary Sanctions
MOVING PARTY:	Defendants Wilshire Skyline, Inc., 6401 Wilshire Boulevard, LLC, and Sergio Gabriel Macias Gutierrez
OPPOSING PARTY:	Plaintiff Mihailo Stanic