Judge: David B. Gelfound, Case: 23CHCV01373, Date: 2025-03-27 Tentative Ruling

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Case Number: 23CHCV01373    Hearing Date: March 27, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO ENFORCE THE COURT’S JANUARY 10, 2025, ORDER; REQUEST FOR SANCTIONS

Motion filed: 3/7/25

MOVING PARTY: Defendant Blazing Wings, Inc. (erroneously sued as Buffalo Wild Wings, Inc.)

RESPONDING PARTY: Plaintiff Erika D. Barrera

NOTICE: OK.

RELIEF REQUESTED: An order from this Court compelling Plaintiff Erika D. Barrera to appear for examination subject to the terms approved in the Court’s January 10, 2025, Order, and imposing monetary sanctions in the amount of $6,910.00 against Plaintiff.

TENTATIVE RULING: The motion is DENIED. The request for monetary sanction is DENIED.

BACKGROUND

This action arises from personal injuries that Plaintiff allegedly sustained on June 17, 2021, in a slip-and-fall incident at Defendant’s premises, known as Buffalo Wild Wings, located at 9301 Tampa Ave., Northridge, CA 91324.

On May 10, 2023, Plaintiff Erika D. Barrera (“Plaintiff”) filed a Complaint against Defendants Blazing Wings, Inc. (erroneously sued as Buffalo Wild Wings, Inc.) (“Blazing Wings”), Anthony Smith (“Smith”) (collectively, “Defendants”), and Does 1 to 50, alleging the following causes of action: (1) general negligence, and (2) premises liability. Subsequently, on August 10, 2023, Blazing Wings filed its Answer to the Complaint.

On February 13, 2024, Plaintiff submitted a request for dismissal, dismissing Defendant Smith without prejudice, which was entered by the Clerk on the same day.

On January 10, 2025, Plaintiff and Blazing Wings filed a joint stipulation regarding mental examination of Plaintiff, which was later entered into an order by the Court on the same day.

On March 7, 2025, Blazing Wings filed the instant Motion to Enforce the Court’s January 10, 2025, Order (the “Motion”). Subsequently, Plaintiff filed an untimely Opposition on March 24, 2025.

No Reply papers have been filed.

ANALYSIS

“Any party may obtain discovery by one or more of the following methods: ... (d) Physical and mental examination.” (Code Civ. Proc., § 2019.010, subd. (d).)

“If a party is required to submit to a physical or mental examination … but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of … a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2032.410.)

A.    Motion to Enforce the Court’s January 10, 2025, Order

The case record reflects that on January 10, 2025, the Court granted the parties’ joint stipulation regarding mental examination of Plaintiff. Specifically, the order provides: “Plaintiff shall submit to the mental examination by Nicholas S. Thaler, Ph.D., ABPP-CN on January 20, 2025 on the terms and conditions set forth in the Parties’ Stipulation.” (1/20/25 Order.)

Defendant Blazing Wings asserts that on January 20, 2025, at 8:59 a.m. – one minute before the examination – Plaintiff’s counsel sent an email notifying Blazing Wings that Plaintiff would not appear for the examination because she was feeling unwell. (Jindal Decl. ¶ 6, Ex. “E.”) Blazing Wings contends that this last-minute cancellation violated the Court’s January 10, 2025, Order, which incorporated the terms and conditions in the parties’ stipulation. The stipulation provides, in pertinent part: “To the extent that Plaintiff fails to appear or submit to the mental examination on the agreed date, or to provide Dr. Thaler with notice of cancellation at least 72 hours before the scheduled exam, in addition to any other legal remedies, Plaintiff shall be solely and exclusively responsible for Dr. Thaler’s cancellation fee of $8,000.00.” (Id. Ex. “D.”)

Additionally, Blazing Wings states that the parties later negotiated a new mental examination date of February 17, 2025, at 9:00 a.m. On the morning of the examination, however, Blazing Wings received a call from Dr. Thaler advising he was unable to proceed with the examination because Plaintiff was demanding a Spanish language translator. (Jindal Decl. ¶¶ 12-13.) Blazing Wings argues that Plaintiff failed to address an interfering cause that would likely prevent the examination from occurring.  (Mot. at p. 3.)

Despite the issues on both dates, Plaintiff argues in her Opposition that the Motion is now moot because she has substantially complied and will complete the full examination prior to the hearing date. (Opp’n. at p. 5.) Plaintiff asserts that she completed the first mental examination session on March 22, 2025, and is scheduled to complete the second session on March 26, 2025, one day before the hearing of the instant Motion. (Garcia Decl. ¶ 11.)

Blazing Wings has not filed a Reply contesting Plaintiff’s representation that she has submitted to the two-day mental examination. While the Court acknowledges delays occurred, it finds that the relief sought in the Motion – namely, to compel Plaintiff’s appearance for a mental examination – is now moot.

Accordingly, the Court DENIES the Motion without prejudice. Should Blazing Wings believe that the second session of the examination scheduled for March 26, 2025, does not comply with the Court’s January 10, 2025, Order, it may seek appropriate relief by filing a new motion.

B.     Monetary Sanctions

“If a party is required to submit to a physical or mental examination … but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of … a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2032.410.)

It is undisputed that Plaintiff did not entirely fail to comply with the January 10, 2025, Order. Rather, the mental examination of Plaintiff was delayed but ultimately completed. The Court next assesses whether the delay warrants the imposition of monetary sanctions against Plaintiff, as argued by Blazing Wings.

Here, Plaintiff argues that her failure to attend the January 20, 2025, mental examination was justified due to a legitimate medical emergency. (Opp’n. at p. 5.) Plaintiff saw a doctor the following day, January 21, 2025, who confirmed her illness and placed her on “off work” status from January 18 to January 22, 2025. (Garcia Decl. ¶ 4, Ex. “B.”)

The Court finds that Plaintiff has demonstrated reasonable justification for her absence from the January 20, 2025, examination. The doctor’s note sufficiently substantiates her illness, and Plaintiff acted in good faith by promptly notifying Blazing Wings and making efforts to reschedule the examination for February 17, 2025, less than one month after the initial date.

The Court finds that monetary sanctions are not warranted under the circumstances.

With respect to the February 17, 2025, rescheduled examination, Plaintiff states that Dr. Thaler observed that her primary language is Spanish rather than English. During a telephone conversation with Plaintiff’s counsel on that day, Dr. Thaler recommended rescheduling the examination to conduct the tests in Spanish, stating that this would yield more accurate results. (Garcia Decl. ¶ 6.) Plaintiff further asserts that she was willing to proceed, but Dr. Thaler determined rescheduling was necessary. (Ibid.)

Based on this record, the Court finds that rescheduling of the February 17, 2025, examination was justified and does not warrant the imposition of sanctions against Plaintiff.

Accordingly, Blazing Wings’s request for monetary sanctions is DENIED.

CONCLUSION

Defendant Blazing Wings, Inc.’s Motion to Enforce the Court’s January 10, 2025 Order is DENIED AS MOOT.

Defendant Buffalo Wild Wings, Inc.’s request for monetary sanctions is DENIED.

Moving party to give notice.

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

Motion filed: 2/21/25

MOVING PARTY: Plaintiff Erika D. Barrera

RESPONDING PARTY: None.

NOTICE: OK.

RELIEF REQUESTED: An order compelling nonparty Amphion to produce business records in compliance with the Deposition Subpoena served on August 16, 2024.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises from personal injuries that Plaintiff allegedly sustained on June 17, 2021, in a slip-and-fall incident at Defendant’s premises, known as Buffalo Wild Wings, located at 9301 Tampa Ave., Northridge, CA 91324.

On May 10, 2023, Plaintiff Erika D. Barrera (“Plaintiff”) filed a Complaint against Defendants Blazing Wings, Inc. (erroneously sued as Buffalo Wild Wings, Inc.) (“Blazing Wings”), Anthony Smith (“Smith”) (collectively, “Defendants”), and Does 1 to 50, alleging the following causes of action: (1) general negligence, and (2) premises liability. Subsequently, on August 10, 2023, Blazing Wings filed its Answer to the Complaint.

On February 13, 2024, Plaintiff submitted a request for dismissal, dismissing Defendant Smith without prejudice, which was entered by the Clerk on the same day.

On January 10, 2025, Plaintiff and Blazing Wings filed a joint stipulation regarding mental examination of Plaintiff, which was later entered into an order by the Court on the same day.

On February 21, 2025, Plaintiff filed the instant Motion to Compel Compliance with Deposition Subpoena for Production of Business Records (the “Motion”).

No Opposition or Reply papers have been filed.

ANALYSIS

“[D]iscovery from a nonparty may be obtained only by ‘deposition subpoena’ [citations].” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130, italics removed.)  

“A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.” (Code Civ. Proc., § 2020.410, subd. (a).) 

“A business records subpoena directs the nonparty’s custodian of records (or other qualified person) to deliver the requested documents (in person, by messenger, or by mail) to the ‘deposition officer’ specified in the subpoena. (§ 2020.430, subd. (a).)” (Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at p. 131.)

Code of Civil Procedure section 1987.1, subdivision (a), provides that if a subpoena requires the production of documents, the Court may, upon motion reasonably made by a party, make an order “directing compliance with it upon those terms or conditions as the court shall declare.” (See also Civ. Code Proc., § 2025.480, subd. (a) [providing that if a deponent fails to produce any document “that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that… production”].)  

A.    Motion to Compel

Plaintiff moves to compel nonparty Amphion to produce business records, including video footage, surveillance camera records, and contracts for the installation and maintenance of safety equipment, at the premises operated by Defendant Blazing Wings, where Plaintiff allegedly sustained personal injury. Plaintiff argues that these records are necessary to assess whether Blazing Wings complied with safety standards in maintaining surveillance and safety equipment over the years. (Mot. at p. 3.)

Plaintiff asserts that on August 13, 2024, Plaintiff’s counsel served Blazing Wings with a notice to consumer pursuant to Code of Civil Procedure section 1985.3, subdivision (b)(1), providing notice of the intent to subpoena records from nonparty Amphion. (Mot. at p. 7; Garcia Decl. ¶ 3, Ex. “A.”) Thereafter, on August 16, 2024, Plaintiff’s counsel served Amphion with a deposition subpoena for production of business records, with a compliance deadline set for September 20, 2024. However, Amphion failed to comply by the stated deadline. (Ibid.)

Subsequently, on October 25, 2024, Plaintiff’s counsel sent a meet-and-confer email to Amphion requesting confirmation by November 30, 2024, as to whether Amphion intended to comply. No responses were received. (Garcia Decl. ¶ 4, Ex. “B.”) As of the filing date of the Motion, Amphion has not produced any documents. (Id. ¶ 5.)

            Based on the foregoing, the Court finds that the business records sought by Plaintiff are within the permissible scope of discovery under Code of Civil Procedure section 2017.010, as they are either relevant or appear reasonably calculated to lead to the discovery of admissible evidence.

            The Court further finds that Plaintiff has complied with the procedural requirements for third-party subpoenas under Code of Civil Procedure sections 1985.3, subdivision (b), and 2020.410.

            Moreover, the case record reflects that neither Amphion nor Blazing Wings has filed a motion to quash the subpoena pursuant to Code of Civil Procedure section 1985.3, subdivision (g), nor has any Opposition to the Motion been filed. In the absence of any opposition, the Court treats any potential objections to the requested relief as waived.

Accordingly, the Court GRANTS the unopposed Motion.

CONCLUSION

Plaintiff Erika D. Barrera’s Motion to Compel Compliance with Deposition Subpoena for Production of Business Records to Amphion is GRANTED.

Nonparty Amphion is ordered to produce business records, in compliance with the Deposition Subpoena for Production of Business Records within 30 days.

Moving party to give notice.