Judge: Kerry Bensinger, Case: 21STCV34031, Date: 2023-08-28 Tentative Ruling

Case Number: 21STCV34031    Hearing Date: August 28, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 28, 2023                                 TRIAL DATE:  October 31, 2023

CASE:                                Humberto Guillen, et al. v. Hideraldo Vieira, et al.

CASE NO.:                 21STCV34031 

MOTION TO CONTINUE TRIAL

MOTION TO COMPELLING IME OF PLAINTIFF

MOVING PARTY:               Defendants Hideraldo Viera and CDL Transport Services, Inc.

RESPONDING PARTY:     Plaintiff Humberto Guillen

I.          BACKGROUND

            On September 15, 2021, Plaintiffs, Humberto Guillen, Rafael Guillen, and Alejandro Guillen, filed this action against Defendants, Hideraldo Vieira and CDL Transport Services, Inc., for injuries arising out of a September 16, 2019 motor vehicle collision.¿ 

On July 28, 2023, Defendants filed a motion to compel Plaintiff Humberto Guillen to submit to an independent orthopedic examination.  This would be Plaintiff’s first medical examination.  Defendants request sanctions against Plaintiff and his counsel. 

On July 31, 2023, Defendants filed a motion to continue the trial date and all trial related dates.  This is the second trial continuance request.  

Plaintiff filed an opposition[1] to the motion to compel only.  Defendant filed a reply.

            The motion to continue trial is unopposed.  The Court addresses these motions in turn.

II.        LEGAL STANDARDS

            A.   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.)¿¿ 

B.  Continue Trial

California Rules of Court, rule 3.1332, subdivision (b) outlines that “a party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations.  The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” 

The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance.  (Cal. Rules of Court, rule 3.1332, subd. (c).)  Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.”  The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served.  (Cal. Rules of Court, rule 3.1332, subd. (d).) 

Notwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial¿or arbitration¿date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter. The deadlines are extended for the same length of time as the continuance or postponement of the trial date.¿ (Code Civ. Proc., § 599.)¿

III.      DISCUSSION

A.  Motion to Compel Physical Examination

Defendant argues good cause exists to compel Plaintiff to appear for an independent orthopedic examination because Defendants properly noticed Plaintiff’s IME on four occasions, yet Plaintiff failed to interpose timely objections or appear for the examinations.  Defendants concede the first three IMEs were scheduled to take place more than 75 miles from Plaintiff’s residence.  However, on the fourth occasion, on June 13, 2023, Defendants noticed the IME to take place 68 miles from Plaintiff’s residence with Dr. Steven Nagelberg on July 13, 2023 at 8:00 AM.  On July 9, 2023  Defendants contacted Plaintiff’s counsel to confirm Plaintiff’s attendance at the July 13, 2023 IME.  Plaintiff responded and, for the first time, indicated that Plaintiff’s counsel was unavailable for 8:00 AM and requested a later time.  When Dr. Nagelberg did not have later appointments for July 13, 2023, Plaintiff indicated he was unavailable for the IME.  Plaintiff has not corresponded with Defendants since to schedule another date for Plaintiff’s IME.

Given the foregoing, the Court finds Defendants are entitled to an order compelling Plaintiff’s attendance at the IME. Plaintiff argues the motion should be denied because Defendant unilaterally noticed the examination at a time Plaintiff’s counsel was unavailable.  However, Plaintiff fails to address why this issue was not timely raised with Defendants.  Accordingly, the motion to compel Plaintiff submit to a medical examination is GRANTED.

Monetary Sanctions

Defendants request sanctions against Plaintiff and his counsel in the amount of $1,9861.65, which consists of 8 hours at defense counsel’s hourly rate, $600 cancellation fee for Dr. Nagelberg, and $61.65 in filing fees.  Given the Court has granted the motion to compel, sanctions are warranted.  Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is also 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, sanctions are imposed against Plaintiff and his attorney of record in the reduced amount of $1,321.65, consisting of 4 hours at defense counsel’s hourly rate, $600 for the cancellation fee, and $61.65 in filing fees.  

B.  Motion to Continue Trial

Defendants argue good cause exists to continue the trial date because Plaintiff has repeatedly failed to comply with basic discovery.  First, Defendants unsuccessfully attempted to take the depositions of all three Plaintiffs between November 2022 and June 2023, forcing Defendants to bring motions to compel Plaintiffs’ depositions and to seek the first trial continuance in this case.  Second, Defendants have brought the motion to compel Plaintiff Humberto Guillen’s attendance for his first IME.  The Court has granted that motion.  The first IME date available with Defendants’ expert, Dr. Nagelberg, is September 12, 2023, which is two weeks before the current discovery cut-off date.  Defendants request additional time to complete discovery after the IME, including following up on additional records and potential depositions.  (See Declaration of Lisa L. Renaud.)¿ For these reasons, Defendants seeks a trial continuance to February 22, 2024, or a date convenient to the Court, and to set all trial related deadlines to the new trial date.

As the Court has found good cause to compel Plaintiff Humberto Guillen’s appearance for the orthopedic examination, and given the discovery that has yet to be completed, the Court finds good cause exists to continue the trial date and all related dates. 

Accordingly, the motion to continue trial is GRANTED.

IV.       CONCLUSION 

The motion to compel Plaintiff Humberto Guillen to submit to an orthopedic examination is granted.  Plaintiff is ordered to appear for the orthopedic examination with Steven Nagelberg, M.D., at 10800 Paramount Blvd., Suite 204A, Downey, California 90241 on September 12, 2023 at 11:00 AM.

The request for sanctions is granted.  Plaintiff Humberto Guillen and his counsel of record are ordered to pay, jointly and severally, sanctions in the amount of $1,321.65 to Defendants, by and through their counsel, within 30 days of this order.

The unopposed motion to continue trial is granted.  The Final Status Conference scheduled for October 17, 2023, is CONTINUED to March 21, 2024 at 10:00 a.m. in Department 27 of the Spring Street Courthouse, and the Non-Jury Trial scheduled for October 31, 2023 is CONTINUED to April 4, 2024 at 08:30 a.m. in Department 27 of the Spring Street Courthouse.  All pretrial deadlines including discovery, expert, and motion cut-off dates are continued to the new trial date of April 4, 2024.         

Moving party to give notice. 

Dated:   August 28, 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.