Judge Jill Feeney, Case 19STCV46514 2023-04-02 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Weingarten argues that Plaintiff failed to appear for his first noticed IME and must be compelled to attend his next noticed IME. Weingarten also argues that although Plaintiff has agreed to appear for an IME, other issues remain unresolved. Specifically, Defendant seeks monetary sanctions against Plaintiff for his failure to appear for the IME, which include a $1,500 no-show fee.

Plaintiff alleges that the motion is now moot because he has already voluntarily appeared for his IME. Plaintiff also argues that there is no legal authority allowing Weingarten to unilaterally shift his contractual obligation to pay a no-show fee. Even if Plaintiff must pay the fee, Plaintiff argues that it is unreasonable because other doctors charge lower fees and because Weingarten and City should be sharing the fees.

Weingarten argues first that Plaintiff’s opposition is late. Weingarten also argues that Plaintiff never responded or objected to the original IME request and never sought relief from waiver of objections. Thus, Plaintiff cannot object to the fees specified in the IME notice. Weingarten also argues that the Court may award sanctions on a motion to compel even if the requested discovery is later provided.

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220, subd. (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.” (Id., § 2032.250, subd. (a).)

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. (Id., § 2032.250, subd. (b).)

Weingarten seeks to compel Plaintiff to attend an IME with Dr. Ronald Kvitne. Weingarten also seeks sanctions. Alternatively, Weingarten seeks issue sanctions prohibiting Plaintiff from introducing evidence of his physical conditions.

Plaintiff’s counsel represents that Plaintiff attended an IME on March 6, 2023. (Kim Decl., ¶22.) Thus, the issuer over Plaintiff’s attendance is resolved. The remaining issue is whether the Court may compel Plaintiff to pay the $1,500 no-show fee and whether the Court may impose sanctions on Plaintiff for failing to appear for the originally noticed IME in November 2022.

In Sinaiko Healthcare Consulting Inc. v. Pacific Healthcare Consultants, the court ruled that in disputes over interrogatory responses, untimely responses served prior to the hearing on a motion to compel responses did not divest the court of its authority to hear the motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.) There, the court relied on California Rules of Court, rule 3.1030, subd. (a) (now renumbered as Rule 3.1348), which provided that the court could award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though the requested discovery was provided to the moving party after the motion was filed. (Id. at p. 409.) “Whether a particular response does resolve satisfactorily the issues raised by a motion is a matter best determined by the trial court in the exercise of its discretion, based on the circumstances of the case.” (Id.)

Here, the Court continues to have authority to hear the instant motion to compel Plaintiff to submit to an IME even if Plaintiff has appeared for his IME because Cal. Rules of Court, section 3.1348 provides that a court may still award sanctions even if the requested discovery was provided to the moving party after the motion was filed.

Weingarten’s counsel testifies that Plaintiff failed to appear for his IME scheduled for November 16, 2022. (McKinnon Decl., ¶3.) Weingarten’s counsel met and conferred with Plaintiff’s counsel and agreed that Plaintiff would appear on an alternative date in January 2023. (Id., ¶5.) Plaintiff did not respond or object to the original IME notice. (Id., ¶9.) As a result of Plaintiff’s failure to appear at the original IME, Weingarten’s counsel incurred $1,500 in fees from Dr. Kvitne’s office. (Id., ¶11.)

Plaintiff’s counsel testifies that he did not know the IME had been scheduled because he was experiencing staffing issues. (Kim Decl., ¶¶8-9.) Plaintiff’s counsel also alleges that Defendant City’s joinder to Weingarten’s IME was untimely. (Id., ¶10.) Plaintiff’s counsel only learned of the IME after Weingarten’s counsel emailed him. (Id., ¶13.) After Dr. Kvitne’s schedule changed in January 2023, the parties agreed that Plaintiff’s IME would take place on March 6, 2023. (Id., ¶21.) Plaintiff attended his IME as agreed. (Id., ¶22.)

Because Plaintiff has now attended his IME, the motion to compel Plaintiff’s attendance at his IME is denied. With respect to sanctions, Code Civ. Proc., section 2032.250, subd. (b) provides that sanctions shall be imposed against a party who unsuccessfully makes or opposes the motion unless the Court finds that the one subject to the sanction acted with substantial justification. Here, although Weingarten’s motion was unsuccessful, the Court finds that he was justified in making this motion because Plaintiff failed to appear for the originally noticed IME.

Code Civ. Proc., section 2032.410 provides that if a party is required to submit to a physical or mental examination under Article 2 or 3 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 an issue sanction, an evidence sanction, or terminating sanction. In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction under Chapter 7 commencing with section 2023.010.

Monetary sanctions for the reasonable expenses incurred may be imposed for misuse of discovery process. (Code Civ. Proc., § 2023.030, subd. (a).) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Reasonable expenses incurred as a result of discovery misuse includes attorney fees, filing fees, referee fees, and other costs incurred. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 790.)

Here, although Plaintiff has now attended his IME, he failed to attend the IME originally noticed. As a result, Weingarten incurred fees totaling $1,500 for Plaintiff’s failure to appear. Weingarten’s counsel provides invoices showing the incurred fees. (McKinnon Decl., Exh. H.)

Plaintiff’s counsel argues that the no-show fee is unreasonable. However, Weingarten provides invoices showing his counsel’s office actually incurred the $1,500 fee from Dr. Kvitne’s office. Although Plaintiff’s counsel argues that he is not personally aware of other doctors who charge a similar fee, there is no requirement that Dr. Kvitne lower his customary fees. Because Plaintiff actually incurred the $1,500 fee, it is reasonable.

As for Weingarten’s remaining demand for $2,020 in attorney’s fees and filing fees, the Court finds that 8 hours of attorney time is excessive. The Court awards $1,040 for 4 hours of attorney time plus filing fees.