Judge: Kerry Bensinger, Case: 20STCV22439, Date: 2023-01-27 Tentative Ruling

Case Number: 20STCV22439    Hearing Date: January 27, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On June 15, 2020, Connor Birnholz (“Plaintiff”) filed this action against Bret Whettam (“Defendant”) for injuries sustained during a motor vehicle collision.

The parties stipulated to continue trial on December 2, 2022, and on January 5, 2023, the Court granted Defendant’s notice motion to continue trial.

Trial is presently set for September 21, 2023.

On December 30, 2022, Defendant filed the instant motion for monetary and issue sanctions due to Plaintiff’s repeated failure to appear for his stipulated independent medical examinations with an orthopedist.

On January 13, 2023, Plaintiff filed his opposition.

On January 19, 2023, Defendant filed his reply.

II.          LEGAL STANDARD

Code of Civil Procedure § 2023.030 provides for the imposition of certain sanctions where a party engages in conduct constituting the misuse of the discovery process.  Among those sanctions the Court may issue are monetary sanctions (subd. (a)), issue sanctions designating certain facts as established (subd. (b)), and evidentiary sanctions limiting matters that may be introduced as evidence (subd. (c)). Code of Civil Procedure § 2023.010, subd. (g) makes “disobeying a court order to provide discovery” a misuse of the discovery process, and Code of Civil Procedure § 2032.410 further provides authority to the Court to make an order requiring a person that fails to submit to a physical or mental examination to make any further orders that are just and impose additional sanctions up to and including terminating sanctions. 

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 App. 4th 27, 36 (superseded by statute on other grounds).)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.)

Code Civ. Proc. §2023.030, subd. (c) & (d) authorizes the Court to impose terminating or evidentiary sanction due to a party’s misuse of the discovery process.  “A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to trial, thus implicating due process rights.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal. App. 4th 566, 604, review denied (July 27, 2016).) “Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”  (Doppes, supra, 174 Cal. App. 4th at 992.)

III.        DISCUSSION

Here, Defendant argues that Plaintiff stipulated to two separate independent medical examinations. (Motion at pg. 3; Cosgrove Decl. ¶ 4, Exh. 1.) Plaintiff has attended a neurological independent medical examination, but Defendant claims that Plaintiff has failed to appear twice for his stipulated and noticed orthopedic independent medical examination. (Motion at pg. 3; Cosgrove Decl. ¶ 5.) Because of this repeated failure, Defendant requests the court to impose monetary and issue sanctions against Plaintiff. (Motion at pp. 6-7.) Specifically, Defendant seeks total monetary sanctions in the amount of $6,100 against Plaintiff, and Defendant also requests the Court to preclude Plaintiff “from arguing and/or introducing any evidence at trial pertaining to medical damages as the result of the incident.” (Motion at pg. 8.)

The Court shall address these requests in turn.

A.   Issue Sanction

As a preliminary matter, the Court finds that Defendant’s request for issue sanctions is procedurally defective because Defendant has failed to include a separate statement along with his motion. (Cal. Rules of Court, rule 3.1345(a)(7).) Defendant claims there is no requirement for the inclusion of a separate statement when seeking issue sanctions. (Reply at pg. 4.)  California Rule of Court, rule 3.1345 requires a separate statement, and the parties are obligated to abide by it.

Nonetheless, even if a separate statement had been filed, the requested relief is premature.  The parties stipulated to take two independent medical examination, and it is permissible for the parties to modify the procedures as it relates to methods of discovery. (Code Civ. Proc. § 2016.030.) While Code of Civil Procedure § 2032.410 permits the Court to impose issue sanctions against a party who fails to submit to a medical examination, the Court finds that it would be improper to do so at this time.  As Plaintiff’s counsel states in his declaration, he had been having difficulty in establishing communications with Plaintiff, and it was believed that Plaintiff intended to be represented by a different attorney. (Turlington Decl. ¶¶ 3, 6.) Additionally, the parties were involved in informal discussions on December 27, 2022 to avoid the filing of this instant motion. (Motion; Cosgrove Decl. ¶ 13, Exh. 4.)  Moreover, by precluding Plaintiff from introducing evidence relating to his medical damages, this proposed sanction would operate as a punishment. (See Parker, supra, 149 Cal. App. 4th at 301.) Effectively, this would lead to a forfeiture of certain alleged damages that stem from Plaintiff’s injuries, and such a result would be improper at this juncture.

Accordingly, Defendant’s request for issue sanctions is denied.

B.   Monetary Sanctions

Additionally, Defendant seeks the Court to impose monetary sanctions against Plaintiff in the amount of $6,100. In reaching this amount, Defendant claims the following expenses and fees: (1) $500 in drafting and serving the first and second Notice of Independent Medical Examination (Cosgrove Decl. ¶ 10); (2) $600 for Plaintiff’s failure to appear at his orthopedic independent medical examination, which required Defendant the examining doctor for his time (Cosgrove Decl. ¶ 9, Exh. 2); (3) $1,500 for Plaintiff’s second failure to appear at his orthopedic independent medical examination (Cosgrove Decl. ¶ 11, Exh. 3); and (5) $3,500 in legal fees for drafting and filing the instant motion as well as for reviewing Plaintiff’s opposition, drafting a reply, and arguing the motion.

In terms of the monetary sanctions associated with legal fees that were incurred, the Court finds that they are improper because Defendant’s attorney fails to attest to his hourly rate and the number of hours used in preparation for the motion. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.) This prevents the Court from determining whether the requested amount is reasonable under the circumstances. However, the Court does find that monetary sanctions are warranted for Plaintiff’s failure to appear at both of the scheduled independent medical examinations because Plaintiff agreed to the second independent medical examination by stipulation and Defendant has provided invoices of the purported charges. (See Cosgrove Decl., Exhs. 1-3.)  

Accordingly, the Court grants Defendant’s motion for monetary sanctions in the reduced amount of $2,100.

IV.         CONCLUSION

Based on the foregoing, the Court DENIES Defendant’s request for issue sanctions and GRANTS Defendant’s request for monetary sanctions against Plaintiff in the reduced amount of $2,100. Plaintiff is ordered to tender payment to Defendant’s attorney of record within 30 days of this order.

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 27th day of January 2023