Judge: George F. Bird, Jr., Case: 20STCV15472, Date: 2023-03-10 Tentative Ruling

“INSTRUCTIONS:
If the parties wish to submit on the tentative ruling and avoid a court
appearance on the matter, the moving party must:

1. Contact the opposing party and all other
parties who have appeared in the action and confirm that each will submit on the
tentative ruling.

2. No later than 4:00 p.m. on the court day
before the hearing, call the Courtroom (310-761-4302) advising that all parties
will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all
parties entitled to receive service.

If this procedure is followed, when the case is
called the Court will enter its ruling on the motion in accordance with its
tentative ruling. If any party declines to submit on the tentative ruling, then
no telephone call is necessary, and all parties should appear at the hearing.
If there is neither a telephone call nor an appearance, then the matter may
either be taken off calendar or ruled on. 

Case Number: 20STCV15472    Hearing Date: March 10, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND  

            The First Amended Complaint (“FAC”) was filed in this action on March 30, 2021. The FAC alleges that Defendant David Williams (“Defendant”) was a history teacher at Lynwood High School when ‘Jamal,’ a student who is not a party to this action, began threatening Plaintiff Andrew Boyd (“Plaintiff”). (FAC, ¶¶ 5,6.) When Plaintiff “…stood up in fear…,” Defendant allegedly placed Plaintiff in a chokehold for an estimated 5-6 minutes before releasing Plaintiff. (FAC, ¶ 6.) Plaintiff brings causes of action for assault and battery and intentional infliction of emotional distress against Defendant and Lynwood Unified School District (collectively “Defendants”).

             On January 19, 2023, Defendants’ Motion to Compel Mental Examination of Plaintiff Andrew Boyd was denied. (Minute Order on January 19, 2023.) The Motion to Compel Mental Examination of Plaintiff Andrew Boyd was denied because Defendants failed to file a separate statement as required by California Rules of Court, rule 3.1345, subdivision (a)(6).

II.       MOTION TO RENEW MOTION FOR ORDER COMPELLING MENTAL EXAMINATION OF PLAINTIFF ANDREW BOYD

A.    Motion filed on February 15, 2023.

            Defendants seek to renew their Motion to Compel Mental Examination of Plaintiff Andrew Boyd under Code of Civil Procedure section 1008, subdivision (b). Defendants argue that new facts and circumstances have transpired which warrant renewing the Motion to Compel Mental Examination of Plaintiff Andrew Boyd. The new facts consist of Defendants serving a formal demand that Plaintiff undergo a mental examination, Plaintiff serving formal objections, and Defendants now filing a separate statement that was served and filed concurrently with this Motion to Renew.

B.     Opposition filed on February 27, 2023.

            Plaintiff argues that Defendants may not cure their defective motion to compel mental examination by simply filing the correct papers that were not present when the motion was originally served. Plaintiff argues that these circumstances are not new facts, and that Defendants were aware their motion was procedurally deficient when it was filed. Plaintiff also argues that the separate statement filed is still procedurally deficient and that Defendants failed to properly meet and confer before filing this Motion to Renew. Plaintiff requests monetary sanctions against Defendants’ counsel for repeated discovery abuses.

C.     Reply filed on March 3, 2023.

            Defendants argue that the separate statement is procedurally sufficient by laying out the terms of the proposed mental examination, the objections, and the good cause supporting mental examination. Defendants point to the numerous email communications to demonstrate that proper meet and confer efforts were made. Defendants argue that sanctions are unwarranted as this motion is proper, there have been sufficient meet and confer efforts, and Defendants’ counsel argues they have not engaged in any discovery abuses.

III.       LEGAL STANDARDS

            Under Code of Civil Procedure section 1008, subdivision (b), “A party who originally made an application for an order which was refused in whole or part … may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown….”

IV.       DISCUSSION

A.    Motion to Renew

            To support this Motion to Renew, Defendants must present “new or different facts, circumstances, or law” for the Court to consider. (Code Civ. Proc., § 1008, subd. (b).) Defendants argue that the new facts and circumstances that support reconsideration of the Motion to Compel Mental Examination of Plaintiff Andrew Boyd are (1) Defendants served a formal demand that Plaintiff undergo a mental examination, (2) Plaintiff served objections to the demand, and (3) Defendants filed the necessary separate statement that is required to accompany a motion to compel mental examination. Leslie Anne Burnet, counsel for Defendants, declares that these facts and circumstances have arisen after the court ruled on the Motion to Compel Mental Examination of Plaintiff Andrew Boyd. (Decl. of Leslie Anne Burnet attached to Motion to Renew, ¶¶ 4, 21, 22.)

            “New facts and circumstances” does not mean all facts and circumstances not previously presented. The moving party is required to show diligence and a satisfactory reason for not presenting the facts previously. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Defendants have not presented any satisfactory reason for not filing the separate statement earlier. Correcting past conduct that was not in compliance with rules of court will not suffice as a new fact or circumstance. (See Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 203–204 [58 Cal.Rptr.3d 466, 481] disapproved of on separate grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164 [126 Cal.Rptr.3d 98, 253 P.3d 266] “When an action is dismissed for failure to comply with a court order, we do not believe that postdismissal compliance with the order is the type of new fact that will support reconsideration under section 1008.”)

            Based on the foregoing, this Motion to Renew the Motion for Order to Compel Mental Examination of Plaintiff Andrew Boyd is DENIED. Because the motion is not renewed, this Court will not analyze the sufficiency of the separate statement in support of the Motion for Order to Compel Mental Examination of Plaintiff Andrew Boyd.

B.     Sanctions

            Plaintiff seeks mandatory sanctions against Defendants’ counsel for failure to properly meet and confer. Code of Civil Procedure section 2032.310, subdivision (b), states that a motion to compel mental examination shall be accompanied by a meet and confer declaration that provides “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) Code of Civil Procedure section 2023.020 requires the imposition of sanctions on any party that fails to meet and confer.

            Leslie Anne Burnet, counsel for Defendants, declares there were several meet and confer efforts made on the previous motion and this Motion to Renew. After the Motion for Order to Compel Mental Examination of Plaintiff Andrew Boyd was denied, Defendants’ counsel declares that they contacted Plaintiff’s counsel on February 6, 2023. (Decl. of Leslie Anne Burnet attached to Motion to Renew, ¶¶ 4, 5.) On February 6, 2023, Defendants’ counsel was informed that Plaintiff’s handling attorney would be changing, but that the objections to the mental examination would remain substantially similar to the prior objections. (Ibid.) Defendants’ counsel then presents email communications with Plaintiff’s new handling attorney on February 6, 7, 8, 9, 13, 14, and 15. (Id. at ¶ 6.)

            This Court finds that Defendants have engaged in extensive discussions with Plaintiff’s counsel since October 6, 2022, that satisfy the meet and confer requirements. Though Plaintiff stated they were agreeable to the mental examination on February 15, 2023, Plaintiff continued to serve objections to the examination procedure. (Decl. of Leslie Anne Burnet attached to Motion to Renew, Exhibit D, p. 12.) Plaintiff provided the same objections to the examination that the parties have been discussing since October 6, 2022. (Decl. Leslie Anne Burnet attached to Motion to Renew, ¶ 7.) Sanctions will not be imposed for failure to meet and confer.

            Plaintiff also seeks discretionary sanctions against Defendants’ counsel for misuses of the discovery process including (1) using a discovery method in a manner that does not comply with its specified procedures, (2) employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense, (3) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery, and (4) failing to confer in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. (Code Civ. Proc., § 2023.010, subds. (b), (c), (h), and (i).)

            As addressed above, Defendants did not fail to meet and confer. This Court also does not find an abuse of discovery for making a motion to compel without substantial justification. Plaintiff has consistently objected to a mental examination since October 6, 2022, and the parties have been unable to resolve their dispute even after meet and confer efforts were made. The Court finds that Defendants failures to comply with proper procedure for this Motion to Renew does not impact if there is substantial justification for bringing the underlying motion.

            Plaintiff argues that Defendants’ counsel is employing a discovery method in a manner that causes undue burden and expense. It is true that this Motion to Renew is procedurally defective, but Code of Civil Procedure section 2023.010, subdivision (c), allows discretionary sanctions for the use of discovery methods that cause undue burden. Here, the undue burden does not stem from using a mental examination in a manner that causes Plaintiff undue burden. The Court does not find that this improper attempt at renewing a motion constitutes employing a discovery method in a manner that causes undue burden.

            Finally, Plaintiff seeks sanctions for using a discovery method in a manner that does not comply with specified procedure. Plaintiff argues that this is the second motion that does not comply with the procedures set forth in Code of Civil Procedure section 2032.310.[1] This Motion to Renew has been denied for failure to offer new facts or circumstances that would allow this Court to renew the underlying motion. Code of Civil Procedure section 2032.310 does not dictate the procedure for a motion to renew. If Plaintiff wanted to pursue sanctions for Defendants’ failure to file a separate statement with the Motion for Order to Compel Mental Examination of Plaintiff Andrew Boyd, Plaintiff should have made the request when the Court was considering the Motion for Order to Compel Mental Examination of Plaintiff Andrew Boyd.

            Based on the foregoing, this Court declines to impose sanctions against Defendants’ counsel.

V.       CONCLUSION

             This Motion to Renew the Motion for Order to Compel Mental Examination of Plaintiff Andrew Boyd is DENIED. The request for sanctions by Plaintiff is DENIED.

Dated: March 10 , 2023                                              __________________________________

                                                                                                Judge of the Superior Court