Judge: Kerry Bensinger, Case: 21STCV32817, Date: 2023-09-19 Tentative Ruling

Case Number: 21STCV32817    Hearing Date: September 19, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     September 19, 2023                           TRIAL DATE:  January 19, 2024

CASE:                                Juana Melgoza v. The Vons Companies, Inc., et al.

CASE NO.:                 21STCV32817

MOTION TO COMPEL PLAINTIFF TO SUBMIT TO

DEFENSE MEDICAL EXAMINATION

MOVING PARTY:               Defendant The Vons Companies, Inc.

RESPONDING PARTY:     Plaintiff Juana Melgoza

I.          INTRODUCTION

            On September 2, 2021, Plaintiff, Juana Melgoza, filed a complaint against Defendant, The Vons Companies, Inc., for injuries arising from a slip and fall in a Vons’ grocery store in Montrose, California.  The trial date was initially set for March 2, 2023, and continued by stipulation of the parties to June 8, 2023.  Discovery was set to the new trial date. 

            On May 11, 2023, the Court granted Plaintiff’s ex parte application to continue the trial date.  Pursuant to oral stipulation, the trial date was continued to January 19, 2024.  However, all discovery remained set to the previous trial date of June 8, 2023. 

            On April 17, 2023, Defendant reserved the first available hearing date for this motion, which was September 19, 2023.  On August 23, 2023, Defendant filed this motion to compel Plaintiff to submit to a defense medical examination.  Defendant seeks sanctions against Plaintiff and her counsel of record.

            On September 6, 2023, Plaintiff filed an opposition.  Plaintiff argues, in part, that Defendant’s motion is untimely given that discovery deadlines remain tied to the June 8, 2023 trial date.  As such, discovery is closed. 

            Plaintiff is correct that discovery is closed.  However, given that the analysis in determining whether Defendant is entitled to an order compelling Plaintiff to submit to a defense medical examination is intertwined with whether discovery should be reopened, the Court construes Defendant’s motion as seeking to reopen discovery.  

II.        LEGAL STANDARDS 

            Reopen Discovery 

            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).)¿¿¿ 

            Compel Physical Examination

            In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee.  (Code Civ. Proc., § 2032.220, subd. (a).)  A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code Civ. Proc., § 2032.220, subd. (d)). 

            Monetary Sanctions¿¿ 

¿¿ 

            Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿¿¿ 

¿¿¿ 

            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.¿¿¿¿ 

¿¿¿ 

            If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary sanction . . . 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., §§ 2030.290, subd. (c), 2031.300, subd. (c).)¿¿ 

¿ 

            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.)¿

III.       DISCUSSION

            A. Reopen Discovery

            The Court finds good cause exists to reopen discovery.  Plaintiff has placed her physical condition at-issue by initiating this action, which entitles Defendant to discover the extent of her injuries by way of medical examination.  Further, it is undisputed that Plaintiff failed to appear for her medical examination.  (The Court discusses, infra, the merits of compelling Plaintiff to appear for a medical examination and Plaintiff’s opposition.)  However, as Defendant has not submitted a meet and confer declaration demonstrating a good faith effort at informal resolution regarding the issue of reopening discovery, the Court intends to continue the motion to allow the parties to meet and confer in good faith.¿ (See Code Civ. Proc., § 2024.050, subd. (a).) Notwithstanding, the Court proceeds to the merits of Defendant’s motion to compel Plaintiff to submit to a defense medical examination.

            B. Compel Physical Examination

            It is undisputed that Plaintiff failed to appear for a properly noticed medical examination.  Plaintiff argues the motion to compel should be denied because Defendant unilaterally changed the time of the medical examination and for Defendant’s failure to meet and confer before filing this motion to compel.  Both arguments lack merit.  First, a review of the email communications between counsel shows Defendant asked Plaintiff’s counsel if plaintiff was available for the April 14, 2023 medical examination “at either 1:00 or 1:30 p.m. in lieu of 3:30 p.m. as scheduled”.  (Opposition, Ex. 1.)  Nowhere in that email does Defense counsel indicate that Defendant was unilaterally changing the time for the medical examination.  Absent an agreed upon change of time, the medical examination proceeded as scheduled at 3:30 p.m. on April 14, 2023.  Second, a motion to compel a physical examination does not require a meet and confer declaration.  Such a declaration is required only if plaintiff objects to a demand for a physical examination.  (Code Civ. Proc., § 2032.250, subd. (a).)  Plaintiff did not object to the demand. 

            Based on the foregoing, the Court is inclined to grant the motion to compel Plaintiff to submit to a medical examination.  However, given the absence of a meet and confer declaration regarding the issue of reopening discovery, the Court intends to continue this motion and to order the parties to meet and confer.

            C.  Monetary Sanctions

            Given that discovery is closed, the Court is not inclined to impose sanctions.  As the Court is continuing this motion to allow the parties to reach an informal resolution by meeting and conferring, the Court may revisit the issue of sanctions should the issues remain unresolved. 

IV.       CONCLUSION

            The Court is inclined to reopen discovery so that Defendant’s motion to compel may be heard and Plaintiff’s medical examination may be conducted.  Given that the parties have not met and conferred in connection with reopening discovery, the motion to compel is CONTINUED to October 24, 2023 at 1:30 PM.  The parties are ordered to meet and confer regarding reopening discovery.  The parties are also ordered to meet and confer regarding the rescheduling of Plaintiff’s medical examination.  If the issues are not resolved, Defendant is to submit a declaration on meet and confer efforts no later than 5 court days before the rescheduled hearing.  Defendant may then proceed with the motion, construed as a motion to compel and to reopen discovery. 

Moving party to give notice. 

Dated:   September 19, 2023                                   ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.