Judge Jill Feeney, Case 20STCV29539 2022-12-07 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.

The request for monetary sanctions is granted as to Plaintiff and Plaintiff’s Counsel of Record pursuant to Code of Civil Procedure Section 2032.410 in the amount of $4,145. These sanctions are payable within ten days after the date of this order.

This is an action for negligence arising from a vehicle collision which took place in January 2020. Plaintiff Ana Perez Martinez filed her Complaint against Jorge Alberto Vanegas, Ryder Truck Rental, Inc., and Does 1 through 20.

Defendants move for terminating sanctions on the grounds that Plaintiff violated the Court’s October 5, 2022 order by failing to attend a neuropsychological examination (“IME”) on November 10, 2022. Defendants also seek monetary sanctions.

Plaintiff argues that she was justified in refusing to attend the IME because Defendants intended to allow the participation of an interpreter who is not a licensed psychologist as required by the October 5, 2022 order.

Defendants argue on reply that Plaintiff fails to provide any statutory authority to support their position that the interpreter retained to assist Plaintiff at the IME must be a licensed psychologist. Defendants also argue the presence of an interpreter does not violate the Court’s order because the interpreter will not obtain or have access to raw data or testing materials and because the interpreter is also bound by confidentiality and a code of ethics.

Plaintiff moves for a protective order requiring that Plaintiff be allowed to record the IME and Defendants’ psychologist, Dr. Boone, be required to turn over raw data and testing materials to Plaintiff’s Counsel. Plaintiff argues that there is a pending appeal on the same facts as the present matter. Alternatively, Plaintiff requests that the effect of the October 5, 2022 order be stayed pending the outcome of this appeal.

Defendants argue that Plaintiff’s motion is untimely and is unsupported by any legal justification. Defendants also argue that interpreters are routinely used during IMEs and there is no requirement that the interpreter be a licensed psychologist. Lastly, Defendants allege that Plaintiff’s motion is an improper and untimely attempt to seek reconsideration of the Court’s October 5, 2022 motion.

A court has both statutory and common law authority to impose terminating sanctions for discovery abuses. (Department of Forestry & Fire Protection v Howell (2017) 18 CA5th 154, 197 (disproved on other grounds by Presbyterian Camp & Conf. Ctrs., Inc. v Superior Court (2021) 12 C5th 493.))

If a party is required to submit to a physical or mental examination and fails to do so, the court may, on motion, make 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. (Code Civ. Proc., section 2032.410.) Alternatively, the court may, in lieu of or in addition to that sanction, impose a monetary sanction. (Id.) If a party engages in the misuse of the discovery process, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc., § 2023.030.) Code of Civil Procedure section 2023.010 provides, in relevant part, that “[m]isuses of the discovery process include, but are not limited to, the following: … (d) Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide discovery.”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)

“Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal. App. 4th at p. 390.)

A court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., section 2017.020, subd. (a).)

The Court granted defendants’ motion for leave to conduct an IME on October 5, 2022. (Jensen Decl., ¶10.) Plaintiff was ordered to appear at Dr. Boone’s office on November 10, 2022 at 9:30 a.m. (Id.) On November 9, 2022, Plaintiff’s counsel notified Defendants’ counsel that Plaintiff would not appear to the IME on the grounds that a language interpreter who would be present to interpret for Plaintiff was not a licensed psychologist. (Id., ¶11.)

Although Plaintiff did violate the Court’s October 5, 2022 order by failing to appear for the November 5, 2022 IME, Plaintiff’s violation was not preceded by a history of abuse and the record does not show that lesser sanctions have been unsuccessful. Accordingly, terminating sanctions are denied.

Because Plaintiff failed to attend the IME, the Court grants monetary sanctions for Dr. Boone’s cancellation fee, the interpreter’s cancellation fee, and the reasonable cost of making this motion (5 hours of attorney time). The Court awards a total of $4,145.

Plaintiff moves for a “protective order” seeking to modify the Court’s October 5, 2022 order or, in the alternative, stay the effect of the order to allow Plaintiff to seek intervention via a writ in mandamus from the Court of Appeals.

Plaintiff requests that the Court take judicial notice of Anderson v. Jones LASC Case No. 21 STCV00175 and the corresponding appellate case under case number B323667. The request is denied because it is not material to the motion for a protective order at hand.

Plaintiff argues that allowing an interpreter who is not a licensed psychologist contradicts the basic premise of Defendants’ arguments and the Court’s October 5, 2022 ruling. Plaintiff requests that the Court allow Plaintiff to audio record the examination and require that Dr. Boon turn over raw data and testing materials to Plaintiff’s counsel. However, the Court has already made a ruling on this issue and will not issue further rulings because the time for reconsideration is long past.

Since the motion for a protective order is actually a late motion for reconsideration, it is denied. The motion is also denied because even as a motion for a protective order it was filed late. Finally, the motion is denied on its merits as Plaintiff does not even attempt to show that Plaintiff meets the requirements for a protective order.