Judge Jill Feeney, Case 20STCV45897 2023-02-06 Tentative Ruling

This is an action for premises liability arising from a trip and fall incident which took place in June 2019. Plaintiff Valena Mitchell filed her Complaint against Pickford Investment Group, LLC on December 1, 2020.

Pickford argues that terminating sanctions are appropriate because Plaintiff failed to obey the Court’s October 21, 2022 order compelling Plaintiff to appear for her IME. Plaintiff failed to attend her IME scheduled for November 23, 2022. Plaintiff also seeks issue sanctions, evidentiary sanctions, and monetary sanctions.

Plaintiff argues that terminating sanctions are not appropriate because Pickford’s IME was ambiguous and Plaintiff believed the IME was on November 28, 2022. Plaintiff also argues that Pickford unilaterally set the IME date. Plaintiff also argues that Pickford failed to contact Plaintiff when she failed to appear for her IME and failed to meet and confer. Plaintiff also seeks sanctions.

Pickford argues that it unambiguously corrected the IME date and confirmed that it would take place on November 23, 2022. Pickford also points out that many of Plaintiff’s arguments in opposition are irrelevant to Plaintiff’s failure to attend her IME. Finally, Pickford argues that Plaintiff’s opposition was untimely.

If a party is required to submit to a physical or mental examination and fails to submit, a court may impose issue, evidence, or terminating sanctions against the party who failed to appear. (Code Civ. Proc., section 2032.410.) A court may impose monetary sanctions in lieu of or in addition to non-monetary sanctions. (Id.)

“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 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendant’s Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

A court should select sanctions that are tailored to the harm caused by the misuse of the discovery process that should not exceed what is required to protect the party harmed by that misuse. (Department of Forestry & Fire Protection v Howell (2017) 18 CA5th 154, 191, disapproved on other grounds.) Sanctions should generally be imposed in an incremental approach, with terminating sanctions being the last resort. (Id.)

“Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)¿ “Although the court has discretion in choosing a sanction, this discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 (citation omitted).) “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Ibid. (citations omitted).)

Pickford moves for terminating sanctions on the grounds that Plaintiff failed to comply with the Court’s October 21, 2022 order compelling her to appear for her IME. The Court notes that Plaintiff’s opposition was untimely. Nevertheless, the Court will consider Plaintiff’s opposition.

Pickford’s counsel testifies that after the Court issued orders compelling Plaintiff to appear for her IME, Pickford noticed Plaintiff’s IME for November 23, 2022. (Feldman Decl., ¶4.) Plaintiff did not respond or object to the notice. (Id.) Plaintiff did not appear for the November 23, 2022 IME, did not provide notice of her inability to attend, and did not explain her failure to attend. (Id., ¶5.) Counsel also testifies that Plaintiff’s failure to comply with the Court’s order is preceded by a history of abuse which required Pickford to file motions compelling production of her psychological records and compelling Plaintiff’s appearance at an IME. (Id., ¶6.)

Plaintiff failed to comply with the Court’s order compelling her to appear at her IME. Although Plaintiff argues that the IME date was ambiguous, the parties’ email communications show that Pickford’s counsel clarified the IME date was November 23, 2022. Additionally, the IME notice clearly states that the date of the IME was November 23, 2022. There is no evidence that Pickford sent “flip flop emails,” as Plaintiff alleges, that would have led Plaintiff to believe the IME was set for November 28, 2022. Plaintiff also fails to show that she appeared on November 28, 2022 for the examination.

Plaintiff makes arguments that Pickford engaged in abusive discovery practices, that Plaintiff has been active in discovery, and that Plaintiff is still attempting to depose a co-owner of the premises. These and other arguments are irrelevant to Plaintiff’s failure to appear for her IME. Plaintiff’s argument that Pickford’s notice was improper because it unilaterally set the IME date is without merit. There is no law stating a party cannot unilaterally set IME dates. Plaintiff’s argument that Pickford withdrew an offer to withdraw the instant motion is also not well taken. Pickford’s counsel testifies that it offered to withdraw this motion and other discovery motions in exchange for fees, responses to outstanding discovery requests, and a stipulation that Plaintiff attend her IME within 30 days. (Feldman, ¶6.) Plaintiff failed to respond to the offer and failed to produce all of the items requested despite Pickford granting an extension. (Id., ¶7.) Plaintiff’s failure to appear for her IME is unjustified.

Although Plaintiff failed to appear for her IME, the Court finds that terminating sanctions are not appropriate here because the evidence does not show that less severe sanctions would not produce compliance with discovery rules. Plaintiff is participating in discovery and has opposed this motion. Additionally, issue or evidence sanctions would preclude Plaintiff from arguing the merits of her mental, emotional, and psychiatric injuries. Pickford would be relieved of its burden to defend against Plaintiff’s claims for these injuries. Thus, issue or evidence sanctions may result in Pickford receiving a windfall by putting it in a better position than it would have been if Plaintiff had appeared for her IME.

The Court thus awards Pickford monetary sanctions for the reasonable cost of bringing this motion and for the costs incurred as a result of Plaintiff’s failure to appear. Pickford requests $1,410 for 6 hours of attorney time preparing and responding to this motion with filing fees, as well as a $4,500 no-show fee incurred when Plaintiff failed to appear for her IME. These sanctions are reasonable. The Court grants Pickford’s requests for sanctions for a total of $5,910.