Judge Kerry Bensinger, Case 19STCV32212 2023-05-05 Tentative Ruling

MOTION TO REOPEN DISCOVERY ON A LIMITED BASIS OR TO EXTEND TIME TO COMPLETE DISCOVERY AND HAVE DISCOVERY MOTIONS HEARD; REQUEST FOR SANCTIONS

On September 11, 2019, Plaintiff Tanda Orelia Rucker brought this action against Fernando Pineda (“Defendant”) for damages arising from a motor vehicle accident. On November 16, 2020, Plaintiff named Executive Car Leasing Company (“ECL”) as Doe 1.

On April 6, 2023, ECL filed this motion to reopen discovery. In their notice of motion, ECL requests imposition of monetary sanctions against Plaintiff and her counsel. Plaintiff opposes and ECL replies.

Except as otherwise provided, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.¿ (Code Civ. Proc., § 2024.020, subd. (a).)¿ On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.¿ This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.¿ (Code Civ. Proc., § 2024.050, subd. (a).)¿¿¿¿¿¿

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”¿ (Code Civ. Proc., § 2024.050, subd. (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 extend or to reopen discovery, 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.¿ (Code Civ. Proc., § 2024.050, subd. (c).)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party’s misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney’s actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney’s advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

ECL’s presentation is confusing and requires the Court to assemble what it believes ECL is after. Here goes: ECL wants to reopen discovery (1) related to Plaintiff’s 2023 neck surgery, which discovery includes: issuing subpoenas for medical records related to the 2/1/23 surgery; and (2) conduct a second orthopedic IME related to the 2/1/23 surgery. Separate and apart from the surgery-related discovery, ECL seeks to compel a neuropsychological IME because Plaintiff previously agreed that such an exam could go forward. And finally, ECL seeks leave to take the deposition of Dr. Calaba.

The parties spend an inordinate amount of time accusing each other of gamesmanship. Such accusations are not helpful. The point here is relatively straight forward: Plaintiff had surgery on February 1, 2023. ECL is entitled to limited discovery as described above to learn the extent of the injuries and damages that will be sought. The record also supports ECL’s request to conduct a neuropsychological IME as such an exam was previously agreed upon but was disrupted by the surgery. In support, ECL submits email correspondence which confirms the agreement. On November 28, 2022, Plaintiff’s counsel states as follows:

1. My client’s surgery needed to be rescheduled. It is my understanding that the surgery is currently scheduled for 1/16/23. It is scheduled with Dr. Hoooman Melamed. As I understand it, the surgery to be completed is the same neck surgery that was recommended by Dr. Melamed early this year.

2. Given the current surgery schedule, we will either need to coordinate for an earlier or later mental exam than the current proposed date. As I previously stated, I am agreeable to the same taking place after the discovery cutoff.”

(Laffey Decl. ¶ 21, Ex. K.) With respect to Dr. Calaba, the Court is very familiar with the issues related to Dr. Calaba based upon the several ex parte applications and numerous efforts to serve her with the motion to compel. The Court grants leave to conduct her deposition.

Moreover, there appears to be accord between ECL and Plaintiff that ECL should be able to conduct Plaintiff’s second neuro IME at the very least. The real issue is whether discovery should be reopened for only the limited purposes described above. Plaintiff contends that all fact discovery should be reopened so that Plaintiff may conduct financial discovery of ECL.[1] However, this is a motion brought by ECL. ECL has demonstrated good cause to reopen discovery for the purposes described above. Plaintiff has neither filed a motion to reopen discovery or demonstrated in any meaningful way what discovery is sought or why that discovery should be ordered. “You get some, so I get some” may be a fine negotiating tactic but it is not a prevailing legal argument. Plaintiff’s passing reference to conducting financial discovery fails to establish good cause to reopen all discovery, nor is it appropriate to seek that relief in opposition rather than by noticed motion.

ECL seeks imposition of $3,520 in monetary sanctions against Plaintiff and her counsel. As the Court has granted ECL’s motion, sanctions are mandatory. (Code Civ. Proc., § 2024.450, subd. (c).)¿ Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Plaintiff’s counsel does not meet their burden.¿ Accordingly, Plaintiff and her counsel of record are ordered to pay, jointly and severally, sanctions in the reduced amount of $1,320, consisting of 6 hours at defense counsel’s hourly rate.

Based on the foregoing, the motion is GRANTED. Fact discovery is reopened for the limited purposes of (1) issuing subpoenas for medical records related to the 2/1/23 surgery; (2) conducting a second orthopedic IME related to the 2/1/23 surgery; (3) conducting Plaintiff’s second neuropsychological IME; and (4) deposing Dr. Jeannine Calaba. All other discovery, except fact discovery for these limited purposes, is to remain closed.

Plaintiff and her counsel of record are ordered to pay, jointly and severally, sanctions in the reduced amount of $1,320, to ECL, by and through ECL’s counsel within 30 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. 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.

[1] Plaintiff does not specify with any clarity, other than a desire for financial discovery related to punitive damages, what further discovery Plaintiff is after. A plaintiff is not entitled to discovery related to punitive damages as a matter of right. A “defendant may be required to identify documents in its possession that are admissible (not merely relevant) on the issue of its profits or financial condition. Defendant may also be required to identify ‘witnesses employed by or related to the defendant who would be most competent to testify’ to its financial condition.” (Weil & Brown, The Rutter Group California Practice Guide: Personal Injury, Discovery ¶ 6:159, citing Civ. Code., § 3295, subd. (c).) “Plaintiff may request that defendant stipulate to a process by which defendant would gather documents pertaining to its financial condition, bring them to trial under seal, and make them immediately available in the event the jury's findings make punitive damages available. (Id. at ¶ 6:159.1.) “This procedure is a frequently used and effective means of handling the matter when a claim for punitive damages is alleged, and may be suggested or facilitated by the court.” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 193 (internal quotes omitted).) “But beyond the foregoing, pretrial discovery of defendant’s financial condition … requires a court order … which may be granted only if the court finds a ‘substantial probability that the plaintiff will prevail’ on the punitive damages claim. A mere prima facie showing of entitlement to punitive damages—even if enough to avoid summary adjudication—is not sufficient.” (Weil & Brown, The Rutter Group California Practice Guide: Personal Injury, Discovery ¶ 6:160, citing Civ. Code, § 3295, subd. (c).)