Judge Gary Y. Tanaka, Case 19STCV24988 2023-01-09 Tentative Ruling

Judge: Gary Y. Tanaka, Case: 19STCV24988, Date: 2023-01-09 Tentative Ruling

Case Number: 19STCV24988 Hearing Date: January 9, 2023 Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, January 9, 2023

Department B Calendar No. 2

PROCEEDINGS

Arnold Flores v. Uber Technologies, Inc., et al.

19STCV24988

1. Estaquio Aguilar-Hernandez’s Motion to Continue Trial

2. Uber Technologies, Inc.’s Joinder to Motion to Continue Trial

3. Estaquio Aguilar-Hernandez’s Motion to Compel Neurological Independent Medical Examination

TENTATIVE RULING

Estaquio Aguilar-Hernandez’s Motion to Continue Trial and Uber Technologies, Inc.’s Joinder to Motion to Continue Trial, are continued to February 27, 2023.

Estaquio Aguilar-Hernandez’s Motion to Compel Neurological Independent Medical Examination is continued to February 27, 2023.

Background

Plaintiff filed his Complaint on July 18, 2019. Plaintiff’s operative Second Amended Complaint was filed on September 2, 2021. Plaintiff alleges the following facts. On February 2, 2019, Plaintiff was riding his motorcycle home from work at LAX Airport when Uber driver, Defendant Estaquio Aguilar-Hernandez, turned left into Plaintiff. Plaintiff alleges that Defendant Aguilar-Hernandez was distracted due to the Uber Driver App. Plaintiff alleges the following causes of action: 1. General Negligence; 2. Motor Vehicle Negligence; 3. Negligence Per Se (Cal. Veh. Code §§ 23123(a); 23123.S(a); 2180l(a); and 22107); 4. Negligent Hiring, Retention, Training, and Supervision; 5. Strict Products Liability.

Motion to Continue Trial

Pursuant to CRC Rule 3.1332(a), “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Under CRC Rule 3.1332(b), “A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

Under CRC Rule 3.1332(c), “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may include good cause include:

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5) The addition of a new party if:

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”

Other factors set forth in CRC Rule 3.1332(d) that are relevant in determining whether to grant a continuance include:

(1) The proximity of the trial date;

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial;

(9) Whether all parties have stipulated to a continuance;

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.

Defendants request that the Court continue the April 11, 2023 trial date. Defendants contend that they have been unable to obtain essential discovery regarding Plaintiff’s alleged mental injury and that this dispute is now the subject of two future motions. Defendants also contend that they have been unable to obtain essential insurance information.

The Court determines that it will be better able to assess the status of discovery and the potential need to continue the trial on February 27, 2023, at the time that Defendant Aguilar-Hernandez’s Motion for Summary Adjudication is set to be heard. By then, the parties will have had nearly two additional months to resolve discovery disputes and to complete essential discovery.

Therefore, the motion to continue trial and the joinder to the motion are continued to February 27, 2023.

Motion to Compel Neurological Independent Examination of Plaintiff

Defendant moves for an order compelling Plaintiff to attend his neurological independent examination with Dr. Vernon B. Williams, M.D., F.A.A.N., on January 19, 2023. The motion is made on the ground that Plaintiff seeks to recover damages from Defendant for traumatic brain injury for claimed injuries sustained on February 2, 2019, and that good cause exists to grant this motion. Defendant further moves for monetary sanctions against Plaintiff and his counsel in the amount of $2,580.00.

Pursuant to CCP § 2032.220, Defendant, in a personal injury action, may demand one physical examination of Plaintiff.

Code Civ. Proc., § 2032.240 states:

“(a) If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand. The court, on motion, may relieve that plaintiff from this waiver on its determination that both of the following conditions are satisfied:

(1) The plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230.

(2) The plaintiff's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The defendant may move for an order compelling response and compliance with a demand for a physical examination.

(c) 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.

(d) If a plaintiff then fails to obey the order compelling response and compliance, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

Code Civ. Proc., § 2032.250 states:

“(a) 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. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) 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 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.”

Here, Defendant has noticed an independent neurological physical examination of Plaintiff. (Decl., Guillame D’Amico, ¶ 3-7; Exs. A, C, J.) Due to a mix-up regarding the location of the examination, the original examination did not go forward, and the examination was re-noticed. The examination was re-noticed again when Dr. Williams tested positive for COVID-19. (Id. at ¶ 10, Ex. G.) Currently, the examination has been re-noticed for a fourth time on January 19, 2023. (Id., at ¶ 14, Ex. J.)

First, the Court notes that Defendant failed to attach Plaintiff’s purported objections to the relevant notice for the currently scheduled examination of January 19, 2023. Defendant’s declarant stated that the objection was attached as Exhibit J. However, Exhibit J only consisted of the notice, but not the objections. Second, the Court cannot make any order to compel appearance at an examination, at this time, because the Plaintiff has not currently failed to appear for the examination since the examination is not scheduled to be completed until January 19, 2023. Any such order is premature, at this time.

Therefore, the motion is continued to February 27, 2023. The Court urges the parties to attempt to resolve this dispute without the need for judicial intervention as it appears that all parties concur that Defendant is entitled to one physical examination. A neurological examination constitutes a physical examination.

If the motion remains on calendar, Defendant is ordered to file with the Court a copy of Plaintiff’s objections to the relevant notice of examination set for January 19, 2023, at least one week prior to February 27, 2023.

Defendant is ordered to give notice of this ruling.