Judge: Kerry Bensinger, Case: 19STCV45536, Date: 2023-02-08 Tentative Ruling

Case Number: 19STCV45536    Hearing Date: February 8, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

          This action arises from a car accident that occurred on the I-10 freeway in Claremont, CA on December 26, 2017. On December 17, 2019, Mary Chiu (“Plaintiff”) and Marc Mullen^[1] filed a complaint against Defendants Virginio Ramos Naranjo and DOES 1 through 20 (“Defendants”) alleging causes of action for 1) motor vehicle and 2) negligence. Defendant Express FTC, Inc. was substituted for DOE 1 on June 25, 2020. Fargo Trucking Company, Inc. was substituted for DOE 11 on April 6, 2022. Trial is currently scheduled for September 21, 2023.

          Dr. Michelle Ann Zeller (“Dr. Zeller”), Defendants’ neuropsychologist, conducted a mental examination of Plaintiff on July 19, 2022. On December 9, 2022, Plaintiff filed a motion to exclude Dr. Zeller as well as her mental examination report from trial. Defendant Naranjo filed an opposition to Plaintiff’s motion to exclude on December 27, 2022, which Defendant Express FTC joined the same day. Plaintiff filed a reply on January 3, 2023.

II.          LEGAL STANDARD

          Code of Civil Procedure section 2023.030, subdivision (c), states that “[t]he court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.”

          Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) The imposition of specific sanctions typically depends on the severity of the party’s transgression. “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) Rather, any given sanction must be “tailor[ed] to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36) (superseded by statute on other grounds). This is because “the purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.) 

          Courts also have inherent power to preclude evidence to prevent abuse of the litigation process. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287.) Courts expressly have the power to “disqualify or enjoin the use of parties’ experts for similar reasons.” (Id. at p. 289.)                               

III.        DISCUSSION

          Plaintiff moves for an order excluding Dr. Michelle Ann Zeller (“Dr. Zeller”) from testifying at trial and the presentation of her findings at trial. Plaintiff alleges Dr. Zeller violated the terms and conditions agreed upon for the IME  by 1) refusing to allow Plaintiff to audio record the entire examination and 2) asking improper deposition type questions that went beyond the permissible scope of the IME terms.

          1.  Factual and Procedural Background

          Defendants served the initial demand (the “Demand”) for defense mental examination on May 6, 2022. (Motion, Decl. Misak Chanchikyan (hereinafter “Misak Decl.”), para. 1, Ex. 1.); (Opposition, Decl. Phil N. Bui (“Bui Decl.”), para. 1, Ex. 1.)

          On May 31, 2022, Plaintiff served objections along with mandatory conditions under which she would accept the Demand. (Misak Decl., para. 2, Ex. 2.); (Bui Decl., para. 2, Ex. 2.) The objections included that a representative from Plaintiff’s attorney’s office “shall be permitted to attend and observe every phase of the examination and take either a stenographic or audio tape recording of ‘any words spoken to or by the examinee during any phase of the examination.’”^[2] (Quoting § 2032.510(a).); (Misak Decl., para. 2, Ex. 2.) The conditions also included that “[t]he doctor shall not attempt to conduct a deposition of plaintiff with respect to details of the accident,” (Misak Decl., para. 2, Ex. 2.)

          On June 8, 2022, Plaintiff and Defendants exchanged emails regarding the type of tests that would be administered and the time limit of the entire examination. (Bui Decl., para. 3, Ex. 3.)

          On June 17, 2022, Defendants served Plaintiff with an amended demand (“Amended Demand”). (Misak Decl., para. 3, Ex. 3.); (Bui Decl., para. 4, Ex. 4.)

          On July 11, 2022, the parties exchanged emails regarding the types of tests that would be administered and the time limit of the entire examination.^[3] (Bui Decl., para. 5, Ex. 5).  Importantly, at the conclusion of Mr. Chanchikyan’s email to Mr. Lawson, Mr. Chanchikyan wrote, “Formal objections to the demand will be forthcoming shortly.” (Id.)(emphasis added)  

          On July 11, 2022, Plaintiff served her Response to Defendant’s Demand For Mental Examination. (Bui Decl., para. 6, Ex. 6).  In the section specifying the conditions under which Plaintiff would accept the demand, Plaintiff stated:

       #5 The defense doctor shall not attempt to take a medical history or inquire into areas which are protected by Plaintiffs right to privacy. The doctor shall not attempt to conduct a deposition of Plaintiff with respect to details of the accident. A reasonable inquiry as to what happened to the plaintiffs body in the incident will be allowed. 

          #7 Plaintiff shall be permitted to audio tape record the entire examination as authorized by §2032.510(a).

          On July 19, 2022, the IME examination went forward without Defendant objecting to or countering Plaintiff’s foregoing conditions.  Because the Defendant did not object to Plaintiff’s conditions, Plaintiff attended the examination with an accompanying nurse, Genevieve Clavreul, who observed the examination and took notes. (Misak Decl., para. 7.) Defendants allege that Dr. Zeller informed Plaintiff before the examination began that she would turn off the audio recording during the testing portion of the examination, which followed the interview portion. (Bui Decl., Ex. 7.) Plaintiff claims Dr. Zeller called Defense counsel after the interview portion of the examination and subsequently stopped the recording. (Misak Decl., para. 7, Ex. 7.)  Plaintiff’s nurse, Ms. Clavreul, reported that Plaintiff shared that she was “concerned and upset about some of the questions” that Dr. Zeller asked her and felt “as though she [was] being deposed. (Misak Decl., para. 7, Ex. 7.)

          On July 21, 2022, two days after the examination, Plaintiff’s counsel requested that Defendants send the raw data directly to Plaintiff’s counsel or Plaintiff would seek judicial intervention and request sanctions. (Bui Decl., para. 9, Ex. 9). On September 13, 2022, Defendant’s counsel responded to Plaintiff’s counsel and offered that Dr. Zeller would provide the raw data directly to Plaintiff’s retained neuropsychological expert only. (Bui Decl., para. 9, Ex. 9). Plaintiff did not accept the offer.

          2.  Defendant Agreed to the Recording Condition.

          Plaintiff argues the terms of the examination were breached in two ways: 1) because Dr. Zeller engaged in deposition style and invasive questions; and 2) because Dr. Zeller turned off the tape in contravention to the specific condition identified in # 9 of the July 11, 2022 Response.  The Court need not address the first argument because the violation of the electronic recording condition is clear.   

          Mental and physical examinations are governed by CCP section 2032. A defendant can demand an examination by court order or stipulation. (CCP § 2032.320.)  Plaintiffs are required to respond to a demand for a mental or physical examination by agreeing outright, agreeing as modified in the response, or refusing to comply for reasons stated in the response. (CCP § 2032.230(a).)  Once the plaintiff has responded to the demand, the burden shifts to the defendant to raise an issue with the modifications. (CCP § 2032.250(a).) If the defendant “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.” (CCP § 2032.250(a).)           

          Here, Plaintiff responded to Defendants’ May 6 and June 17 Demands by agreeing to the exam only if the examination incorporated certain modifications, including that Plaintiff be able to audio-record the entire examination.  The operative Response being Plaintiff’s Response dated July 11, 2022.  Pursuant to § 2032.250(a), the burden shifted to Defendants to raise any issues with Plaintiff’s conditions, or to contact Dr. Zeller to ensure that at the time of the examination she would comply with Plaintiff’s conditions, or to move to compel.  Furthermore, because Defendants did not object to Plaintiff’s July 11^th Response, Plaintiff agreed to proceed with the exam with those specific terms in mind.  The ball was in Defendants’ court to object to the July 11^th terms.  They did not.

          Defendants argue that at no time during negotiations did Plaintiff raise the issues regarding audio recording and scope of questioning.  Further, Defendants contend, by emailing Defendants about different concerns with the examination, Plaintiff mislead Defendants into believing Plaintiff was not concerned with the ability to audio-record the entire examination.  These arguments are beside the point.  Plaintiff’s discussion did not limit or obviate their objections or expressed conditions.  In fact, Plaintiff specifically stated in her July 11, 2022 email that formal objections were forthcoming, and, on that same day, Plaintiff served the formal objections which clearly stated the recording condition. 

          3.  Breach

          Dr. Zeller turned off the audio recording after 55 minutes and proceeding to conduct the remainder of the 235 minute examination with no audio recording. (Opposition, Ex. 7.) One of the conditions of the examination was that Plaintiff or a representative would be able to audio-record any part of the examination; therefore, Dr. Zeller violated the terms of the agreement.  Moreover, Dr. Zeller purportedly called defense counsel who, in direct violation of the terms of the examination, authorized her to turn of the recording.  At no time did defense counsel reach out to Plaintiff’s counsel.  This was, quite simply, a unilateral breach of the express terms of the agreement.  And the breach prejudices Plaintiff’s ability to assess whether Defendant complied with the terms, conditions, and procedures of the IME, in particular, condition #5 as stated in the July 11^th letter. 

4.  Dr. Zeller’s Ethical Constraints

Defense counsel argues that Dr. Zeller’s ethical constraints justify the termination of the recording.  The Court need not wade into the thorny issues raised by these arguments because the relevant issue here is the breach of the terms upon which the examination took place.  If Dr. Zeller’s ethical constraints were a concern, those concerns should have been raised before the examination moved forward. 

IV.         CONCLUSION

Plaintiff’s motion to preclude Defendant from calling Dr. Zeller as a witness or presenting her findings at trial is GRANTED.  

Moving party to give notice.

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.

Dated this 8^th day of January 2023