Judge: Anne Richardson, Case: 23STCP00466, Date: 2023-08-09 Tentative Ruling
Case Number: 23STCP00466 Hearing Date: October 18, 2023 Dept: 40
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CAROL SHPIRO, an individual, Petitioner, v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent. |
Case No.: 23STCP00466 Hearing Date: 10/18/23 Trial Date: N/A [TENTATIVE] RULING RE: Respondent Liberty Mutual Insurance Company’s Motion to
Lift Stay of Action; and Respondent Liberty Mutual Insurance Company’s Motion to
Compel Petitioner to Comply with Demand for Orthopedic Examination, and
Request for Sanctions. |
The
Petition arises from a dispute between the parties related to Petitioner
Shpiro’s entitlement to a payout pursuant to her uninsured motorist coverage
and umbrella coverage with Liberty, which Petitioner Shpiro seeks because of
injuries she sustained in a vehicle collision with an uninsured motorist.
On
April 19, 2023, Liberty made a motion to compel Petitioner Shpiro to comply
with a demand for orthopedic examination.
On
April 20, 2023, the Court granted Petitioner Shpiro’s Petition, ordered the
parties to arbitration, and stayed this action. In light of the stay and
pursuant to an oral stipulation by the parties, the Court also advanced and
vacated Liberty’s April 19th motion.
On
August 9, 2023, the Court appointed an arbitrator in this action.
On
August 21, 2023, Liberty made a new motion to compel Petitioner Shpiro to
comply with a demand for orthopedic examination (IME motion).
On
August 22, 2023, Liberty moved for a partial lift of the stay in this action
for the purpose of having this Court rule on Liberty’s August 21, 2023 motion.
On
October 3, 2023, Petitioner Shpiro opposed Liberty’s August 2023 motions.
On
October 11, 2023, Liberty replied to the oppositions.
Liberty’s
motion to lift stay and IME motion are now before the Court.
The Court TAKES judicial notice of
Petitioner Shpiro’s October 3, 2023 opposition to Respondent Liberty’s motion
to lift stay. (IME Opp’n, p. 2.)
Every
California court has the inherent and statutory authority to provide for the
orderly conduct of proceedings before it and to control its process and orders
so as to make them conform to law and justice. (Code Civ. Proc., § 128, subds.
(a)(3), (a)(8).)
Order
Lifting Stay: GRANTED.
Respondent
Liberty moves for a partial lifting of the stay in this action for the purpose
of having the Court consider Liberty’s August 21, 2023 motion to compel an IME
of Petitioner Shpiro. Liberty argues that because this action involves uninsured-motorist
arbitration proceedings, pursuant to Insurance Code section 11580.2,
subdivision (f), any discovery disputes must be resolved by a trial court.
(Stay Mot., pp. 3-6.)
Petitioner
Shpiro opposes a lifting of the stay on the ground that all discovery disputes
arising out of arbitration must be submitted first to the arbitrator, not the
court. The two-page opposition cites a single case, Berglund v. Arthroscopic
& Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528, 535-536
[(Berglund)] [generally in contractual arbitration ‘discovery disputes
arising out of arbitration must be submitted first to the arbitral, not the
judicial forum’].)” (Stay Opp’n, pp. 1-2.) Petitioner also attaches the Court’s
prior April 20, 2023 minute order, in which the Court vacated the motion for an
IME after granting the petition to compel arbitration.
Liberty
replies that Petitioner Shpiro ignores authority vesting the superior court
with exclusive jurisdiction to resolve discovery disputes in uninsured-motorist
arbitration proceedings. (Stay Reply, pp. 2-3.)
The
Court finds in favor of Respondent Liberty.
“Uninsured-motorist
arbitration proceedings under ‘“Insurance Code section 11580.2 [are] a form of
contractual arbitration governed by the [California Arbitration Act].”’ (Briggs
v. Resolution Remedies (2008) 168 Cal.App.4th 1395, 1400[] ….) One
difference between these proceedings and most other arbitrations … is that in
these proceedings discovery disputes are resolved by a trial court—not the
arbitrator. (Ins. Code, § 11580.2, subd. (f); cf. Berglund v. Arthroscopic
& Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528, 535[]
… [(Berglund)] [generally in contractual arbitration ‘discovery disputes
arising out of arbitration must be submitted first to the arbitral, not the
judicial forum’].)” (State Farm Mutual Automobile Insurance Company v.
Robinson (2022) 76 Cal.App.5th 276, 282 (Robinson).)
Here,
the Court’s review of Petitioner Shpiro’s Petition shows that this action
involves an uninsured-motorist arbitration proceeding because Shpiro is
attempting to obtain a payout pursuant to her insurance coverage with Liberty
based on injuries sustained by Shpiro in an uninsured-motorist vehicle
collision. (See Petition, ¶¶ 1, 4, 6; see also Petition, Prayer, ¶ 1
[“Petitioner requests that … [t]he Court issue an order compelling the
arbitration of this … uninsured motorist claim …”].)
The
Court briefly notes that Robinson does not conflict with Berglund.
Berglund discussed situations in which “the Legislature granted
arbitrators the authority to order a nonparty to an arbitration proceeding to
provide discovery to a party[] and granted arbitrators the power to enforce
discovery.” (Berglund, supra, 44 Cal.4th at p. 536.) An exception
to such a general rule is Insurance Code section 11580.2, subdivision (f), where
the Legislature gave the superior court exclusive jurisdiction to resolve
discovery disputes in uninsured-motorist arbitration proceedings. (See also Miranda
v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 925 (Miranda) [special
rule governing uninsured motorists prevailed over general statute codified in
Code of Civil Procedure section 1280 et seq., vesting the court with exclusive
jurisdiction to hear discovery matters
arising under uninsured motorist arbitrations].)
Second,
the fact that this Court previously vacated the hearing on the motion to compel
an IME does not require that it blindly continue on that tack. At the time of
that hearing, there had been no briefing as to this Court’s authority, indeed, exclusive
jurisdiction, to hear discovery motions in this uninsured motorist case. Having
now considered applicable caselaw, the Court finds that it should lift the stay
to the motion.
Therefore,
in line with the authority cited in Robinson and Miranda, the
Court GRANTS Respondent Liberty’s motion to partially lift the stay in this
action.
Pursuant
to Code of Civil Procedure section 128, the Court ORDERS the April 20, 2023
stay in this action lifted, in part, for the purpose of addressing the August
21, 2023 motion to compel an IME of Petitioner Shpiro. The Court also finds it
appropriate to ORDER the stay lifted as to all future discovery disputes
between the parties in this action.
Any
party can make a motion for a physical or mental examination. (Code Civ. Proc.,
§§ 2032.240, subd. (b), 2032.310, subd. (a); see, e.g., Doyle v. Superior
Court (1996) 50 Cal.App.4th 1878, 1880-1881 [plaintiff in defamation case
made motion for mental examination of defendant cross-complainant because
defendant claimed mental anguish from plaintiff’s sexual harassment].) A mental
examination must be sought through a motion rather than, for example, simply
through a demand. (See Code Civ. Proc., § 2032.310, subd. (a); Carpenter v.
Superior Court (2006) 141 Cal.App.4th 249, 259.)
The
points and authorities supporting the motion must:
(1)
Identify the examinee and show that the person is a party to the action, an
agent of any party, or a natural person in the custody or under the legal
control of a party (see Code Civ., Proc., § 2032.020, subd. (a));
(2)
Show how the examinee’s physical or mental condition has been placed in
controversy in the case (Code Civ. Proc., § 2032.020, subd. (a));
(3)
Establish good cause for the physical or mental examination, where good cause
involves providing specific facts justifying discovery and show that the
inquiry is relevant to the subject matter of the case or reasonably calculated
to lead to the discovery of admissible evidence (Code Civ. Proc., § 2032.320,
subd. (a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 840, fn. 6
[general rule and defining good cause]; see Code Civ. Proc., 2032.320, subd.
(e)(1) [must show good cause to conduct examination more than 75 miles from the
examinee’s residence]; Carpenter v. Superior Court, supra, 141
Cal.App.4th at p. 259 [good cause required for a mental examination]); Greyhound
Corp. v. Superior Court (1961) [good-cause requirement serves as a barrier
to excessive and unwarranted intrusions]);
(4)
Provide the details for the examination, including the time, place, and manner
of examination, condition, scope, and nature thereof, and examiner (Code Civ.
Proc., § 2032.310, subd. (b)); and
(5)
State the examining party’s willingness to pay for the examinee’s travel
reasonable expenses and costs where the motion requests a place for the
examination that is more than 75 miles from the examinee’s residence (Code Civ.
Proc., § 2032.320, subd. (e)(2)).
The
motion need not include a separate statement. (See Cal. Rules of Court, rule
3.1345, subd. (a)(6).)
Order Compelling Physical
Examination: GRANTED.
Respondent Liberty’s IME motion
identifies Petitioner Shpiro as the examinee and shows her to be a party in
this action. (IME Mot., pp. 1-2, Notice.)
Liberty’s motion shows that she has
put her physical condition at issue. For example, Petitioner Shpiro has claimed
a torn meniscus in her knee as a result of her accident with the uninsured
motorist. (IME Mot., p. 3; IME Mot., Flores Decl., Ex. A, Response to Form
Interrogatory Nos. 6.2, 6.3.) Petitioner Shpiro has also represented that she takes
medication to treat her injuries from the accident, including Naproxen, which
she takes twice a day. (IME Mot., Flores Decl., Ex. A, Response to Form
Interrogatory No. 6.5.) An orthopedic exam would allow for a determination on
the extent of such injuries.
Liberty also shows good cause for
the examination. As stated by Liberty: “[Liberty] is entitled to an orthopedic
examination based on Petitioner [Shpiro]’s claims. Petitioner [Shpiro] has put
her physical condition at issue. The purpose of the examination is to ascertain
Petitioner [Shpiro]’s current medical conditions and assess her claimed
injuries. It is prejudicial to [Liberty] to allow Petitioner [Shpiro] to make
these claims without allowing [Liberty] an opportunity to appropriately
evaluate Petitioner [Shpiro]’s claims. Without the opportunity to complete an
orthopedic examination of Petitioner [Shpiro], [Liberty] is severely hindered
and prejudiced in its ability to prepare for and participate in the
arbitration.” (IME Mot., p. 6.)
Liberty’s motion provides the
details for the IME, including the examiner and place of examination (Dr.
Neeraj Gupta and this doctor’s Pomona, California offices), and the manner of
examination, condition, scope, and nature thereof. (See IME Mot., Flores Decl.,
Exs. B, pp. 1-2 & J, pp. 1-2; see also Mot., pp. 3-10.) Though the time for
the proposed IME—including the date—is not provided in the motion, the Court
finds that this term can be addressed with the parties at the hearing such that
the failure to include a time for the proposed IME is not a ground for denying
this motion.
Liberty does not need to state its
willingness to pay for Petitioner Shpiro’s reasonable travel expenses and costs
because the motion seeks an IME less than 75 miles from Petitioner Shpiro’s residence.
(See IME Mot., pp. 3, 7-8 [Dr. Gupta’s offices being 60 miles from Petitioner
Shpiro’s residence].)
Last, the Court notes that it fails
to find that good reason exists to continue this hearing to allow Petitioner
Shpiro to oppose this motion on the merits. (IME Opp’n, p. 2.) This motion was
noticed and served on August 21, 2023, giving Petitioner Shpiro sufficient time
to oppose the IME motion. Petitioner Shpiro chose to rely exclusively on the limitations
discussed in Berglund, which were distinguishable. Shpiro did not even attempt
to distinguish the cases that were cited in support of the motion to lift the
stay. Counsel’s decision not to brief the issue of the IME separately in the
event the Court disagreed with its position on the stay was a calculated risk
and does not require this Court to continue this hearing.
Moreover, the Court has reviewed
the communications attached to the moving papers, which show Petitioner’s counsel
objecting to the IME on the sole ground that it was 60 miles away (acknowledging
it was still within the 75 miles allowed by Code). The Court sees no basis for
denying the IME.
Accordingly, Liberty’s IME motion
is GRANTED.
Sanctions: DENIED.
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 compel response and 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., § 2032.240, subd. (c).) Here, the Court finds that it would be unjust to impose sanctions on Petitioner Shpiro. Though the Court recognizes that she has unsuccessfully opposed this motion, she did so based on Berglund and the court’s own prior minute order, which provided a reasonable if incorrect basis for believing that the motion to lift stay and the IME motion should be denied. Sanctions are thus DENIED.
Respondent Liberty Mutual Insurance
Company’s Motion to Lift Stay of Action is GRANTED.
Pursuant to Code of Civil Procedure
section 128, the Court ORDERS the April 20, 2023 stay in this action lifted, in
part, for the purpose of addressing the August 21, 2023 motion to compel an IME
of Petitioner Shpiro. The Court also finds it appropriate to ORDER the stay
lifted as to all future discovery disputes between the parties in this action.
Respondent Liberty Mutual Insurance
Company’s Motion to Compel Petitioner to Comply with Demand for Orthopedic
Examination is GRANTED.
The Court ORDERS Petitioner Shpiro
to submit to an orthopedic examination with Dr. Neeraj Gupta, at a mutually
agreeable time within the next 30 days, at 160 E. Artesia Street, Ste. 360,
Pomona, CA 91767, with the IME to follow the framework set out in the prior IME
demands. The parties may further meet and confer regarding the terms of the
IME, and the Court will make itself available to handle a voluntary IDC should the
parties be unable to finalize the details.
The corresponding Request for
Sanctions is DENIED.