Judge: Anne Hwang, Case: 21STCV08362, Date: 2023-10-17 Tentative Ruling

Case Number: 21STCV08362    Hearing Date: January 26, 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 March 3, 2021, Plaintiff Catherine Rodriguez (“Plaintiff”) filed a complaint against Defendants Office Depot (“Defendant”) and Does 1 to 25 for negligence and premises liability after allegedly stepping on a nail. Trial was initially set for August 31, 2022. At a later trial setting conference, trial was then set to July 20, 2023. The discovery/motion cutoff was based on that date. (Min. Order, 1/9/23.)

On May 4, 2023, Plaintiff amended the complaint to add Apollo Retail Specialists as Doe 1 (“Apollo”). On June 7, 2023, pursuant to stipulation by the parties, the Court continued trial and all related discovery and motion dates to December 28, 2023.

            On December 14, 2023, Defendant’s ex parte application continuing trial, to February 28, 2024, was granted. (Min. Order, 12/14/23.) Discovery remains closed.

Defendant now moves to reopen discovery for the limited purpose of compelling and taking Plaintiff’s independent medical examination and thereafter allowing Plaintiff to depose its expert. Defendant filed this motion on December 13, 2023. Plaintiff opposes.

LEGAL STANDARD

Reopen Discovery

“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.¿ This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”¿ (Code Civ. Proc., section 2024.050, subd. (a).)¿ 

¿¿ 

“In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery.¿ (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿ (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿ (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”¿ (Code Civ. Proc., section 2024.050, subd. (b)(1)-(4).)¿¿¿ 

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, 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.”¿ (Code Civ. Proc., section 2024.050, subd. (c).)¿¿¿ 

Compel Medical 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 examination must also be scheduled for a date at least 30 days from service of the demand. (Id. § 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. 

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, 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. (Code Civ. Proc. § 2032.250 (b).) 

MEET AND CONFER

The Declaration of Christopher Bauer states counsel for Apollo and he unsuccessfully attempted to meet and confer with Plaintiff regarding the examination. (Bauer Decl. ¶ 10.) Additionally, once Apollo and Plaintiff settled, Defendant attempted to reschedule the examination with Plaintiff. (Id. ¶ 16–17.) Therefore, it appears Defendant attempted to resolve the matter in good faith.

DISCUSSION

Reopen Discovery

Defendant argues that during the course of litigation, Apollo and it agreed to jointly retain Dr. Scott Forman as a medical expert and to conduct an orthopedic examination of Plaintiff. On September 11, 2023, Apollo served a notice of independent medical examination on Plaintiff, set for November 13, 2023. (Bauer Decl. ¶ 7.) On September 19, 2023 Plaintiff served an objection stating the examination was improperly noticed, but not describing anything further. (Id. ¶ 9.) Subsequent attempts to meet and confer to secure Plaintiff’s attendance were unsuccessful. On October 26, 2023, Plaintiff informed the parties she had relocated to the state of Washington. (Id. ¶ 11, Exh. D.) On October 30, 2023, Apollo informed Plaintiff her objections were invalid, and that the examination would proceed. (Id. ¶ 12, Exh. E.) Then, on November 11, 2023, Apollo and Plaintiff reached a settlement. (Id. ¶ 15.) On that same day, Defendant contacted Plaintiff with five potential dates for an examination and indicated it would reimburse Plaintiff for travel costs. (Id., Exh. F.) Plaintiff did not appear for the November 13, 2023 examination. (Id. ¶ 16.)

Plaintiff argues Defendants have not been diligent in litigating this case. Plaintiff notes that Defendant never noticed the November 13, 2023 examination. The examination was only noticed by Apollo, who shortly before, settled with Plaintiff, rendering the notice moot. However, Defendant presents a September 19, 2023 letter from Plaintiff’s counsel requesting that the defendants agree to one defense medical examination in this case. (Bauer Decl., Exh. C.)  Therefore, there is reason to believe that Plaintiff was aware the November 13, 2023 examination was on behalf of Defendant as well, even though Defendant did not respond to the letter. Based on the letter, it also appears Plaintiff objected to the examination because she alleged the examiner had a bias. In opposition, Plaintiff does not explain the legal basis for objecting to the initial Notice, since it was served on September 11, 2023, and set for November 13, 2023, well in advance of the discovery cutoff on November 28, 2023.

 Also, in an October 26, 2023 letter, Plaintiff indicated she would appear if Apollo paid for travel costs since she had since relocated to the state of Washington. (Bauer Decl., Exh. D.) Defendant similarly offered to pay for travel costs on November 11, 2023. Lastly, while Plaintiff argues that Defendant’s request for an examination was improper since it offered dates after the trial date of December 28, 2023, Defendant informed Plaintiff it would seek a motion to continue trial. (Id., Exh. F.)

Based on the evidence, it appears Defendant relied on Apollo to notice the examination and communicate with Plaintiff. Defendant states it made an agreement with Apollo to share the costs of the same orthopedic expert. However, immediately after the settlement, Defendant worked to schedule the examination. Additionally, based on the representation that Defendant and Apollo were relying on the same expert, that settlement was reached suddenly before examination, and that Defendant may be prejudiced without the examination, the motion to reopen discovery for a limited purpose is granted. Discovery shall be reopened for the limited purpose of compelling and taking Plaintiff’s independent medical examination and thereafter allowing Plaintiff to depose its expert, Scott Forman, M.D.

Compel IME

With discovery opened, the Court now turns to Defendant’s motion to compel Plaintiff’s independent medical examination (“IME”). (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568, 1588 [requiring a trial court to hear a motion for leave to reopen discovery under section 2024.050, or consider its factors, before hearing a discovery motion past the deadlines in Code of Civil Procedure section 2024.020.)  

The facts outlined above are relevant to this motion, specifically that Apollo noticed Plaintiff’s medical examination with Dr. Scott Forman on September 11, 2023, set for November 13, 2023. Plaintiff served an objection on September 19, 2023. Plaintiff claims torn left knee ligaments due to the incident in this case. (Bauer Decl. ¶ 19.) The Notice appears to comply with section 2032.220. (Id., Exh. A.)

Plaintiff argues Defendant’s motion is defective since it was not the party who demanded the examination. Code of Civil Procedure section 2032.250 states: “If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff's response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand.” Defendant does not state any authority refuting Plaintiff’s argument except for claiming that it is gamesmanship. (Motion, 7.) However, since it does not appear Defendant actually demanded the examination under section 2032.220, the motion is procedurally defective.

In light of the trial date, the Court would consider a motion to shorten the time as to a procedurally proper demand, or a motion to continue the trial date. The parties are ordered to meet and confer.

CONCLUSION AND ORDER

Accordingly, Defendant Office Depot’s motion to reopen discovery is GRANTED. The parties should meet and confer promptly to ensure that all discovery can be completed by the current trial date, or a new trial date if necessary.  

Defendant Office Depot’s motion to compel Plaintiff’s independent medical examination is DENIED without prejudice.

Defendant to provide notice and file a proof of service of such.