Judge: Craig Griffin, Case: "Cheragian vs. Starbucks, LLC", Date: 2022-10-17 Tentative Ruling

The “Motion to Compel Independent Medical Examination, etc.” filed on 7/26/22 by Defendants Starbucks Corporation and South Coast Plaza Estela (here as the moving parties, “MPs”) is DENIED, without prejudice to a procedurally proper renewed motion.

The Motion is defective on its face. As a preliminary matter, a motion to compel an IME over objection must be accompanied by a separate statement identifying the request, the objection thereto and the reasons why an examination should be compelled. (C.R.C. 3.1345(a)(6).) Here, as the only objection made was an email as to scheduling concerns, the omission of a Separate Statement here might have been excusable.  But more importantly, for any mental exam, obtaining leave of court is a prerequisite. (See C.C.P. § 2023.310(a).)  MPs thus could not simply notice a mental IME, as they attempted to do here, and then move to enforce it. 

In addition, such a motion 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 person or persons who will perform the examination.” (See C.C.P. § 2032.310(b).)  Here, the Motion failed to specify the conditions, scope and nature of the exam, including the kinds of tests to be performed. (See ROA 214.) Nor did the notice for the IME itself present that information. (Id. at Ex. A.) Instead, the notice for the requested IME described the scope of the intended exam as if it would be a physical exam, referring to x-rays and a “physical examination.” As no order can be issued to compel a mental IME without these specifics, this defect is  fatal to the Motion.

The Motion also fails to show that an adequate meet and confer effort was made to reach agreement on a stipulation for the proposed IME.  Merely noticing a mental exam, demanding dates, and then moving to compel compliance does not suffice.

In addition, the Opposition asserts that Plaintiff did appear for the exam on 9/9/22, only to discover that it had not been scheduled by the defense.  Although the reply identifies circumstances which reasonably led an associate at defense counsel’s firm to be unexpectedly absent beginning on 9/7/22 (see Sohrabian Decl. ¶¶ 3, 4), that does not address the failure to have communicated with and engaged the expert between 8/9/22 (when the 9/9 date was offered per the Opp at Ex. 2) and 9/7/22, or the failure of the defense firm to either reset the exam or finalize the IME arrangements in her absence.  Nor does the reply explain the failure to even discover the omission until 10/4/22.

For all of these reasons, the Motion is DENIED.  However, as MPs are entitled to seek a rescheduled IME exam date despite the errors addressed here, this ruling is without prejudice to a renewed motion which cures the defects identified above. Counsel are encouraged to cooperate in addressing same to avoid, if possible, any such renewed motion.

In light of the circumstances presented here, MPs’ sanction request is DENIED, and Plaintiff’s sanctions request is GRANTED IN PART.  Although some sanctions in favor of Plaintiff are clearly warranted here, the rate claimed for Mr. Nalbandyan is excessive in this context, and the claim for fees for services rendered by counsel’s unidentified “team members” is insufficiently supported.  The Court thus finds that sanctions should be awarded to Plaintiff on this motion in the reduced sum of $1,500, against Manning & Kass, Ellrod, Ramirez, Trester LLP only, as no party was also identified as required under C.C.P. § 2023.040, and the fault here was clearly that of defense counsel alone. Such sanctions are to be paid to Plaintiff, through her counsel of record, within 30 days. 

Counsel for MPs is to give notice of this ruling.