Judge: Lee S. Arian, Case: 21STCV32817, Date: 2023-10-24 Tentative Ruling
Case Number: 21STCV32817 Hearing Date: October 24, 2023 Dept: 27
Tentative Ruling
Judge Kerry Bensinger, Department 27
HEARING DATE: October
24, 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
April 17, 2023, after Plaintiff did not appear for a properly noticed medical
examination, Defendant reserved the first
available hearing date for this motion, which was September 19, 2023.
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 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 argued, in part, that Defendant’s
motion was untimely given that discovery deadlines remain tied to the June 8,
2023 trial date.
The
motion was heard on September 19, 2023. The Court issued a ruling construing the
motion as seeking to reopen discovery because the analysis in determining
whether Defendant was entitled to an order compelling Plaintiff to submit to a
defense medical examination was intertwined with whether discovery should be
reopened. The motion, construed as a motion
to reopen discovery, was granted. The
Court further stated an inclination to grant Defendant’s motion. However, because the parties had not met and
conferred regarding the issue of reopening discovery, the Court ordered the
parties to meet and confer regarding that issue and the issue of rescheduling
Plaintiff’s defense medical examination.
The Court also stated it would revisit the issue of sanctions should the
issues remain unresolved.
On
October 17, 2023, defense counsel filed a declaration regarding the outcome of
the parties’ meet and confer. Defendant
indicates the issues remain unresolved.
As such, Defendant seeks an order compelling Plaintiff to appear for
deposition and the imposition of sanctions.
The
Court rules as follows:
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
Defense counsel
explains that counsel for the parties met and conferred following the September
19, 2023 hearing. Defense counsel
offered November 8, 2023 at 3:30 p.m. as an available date and time for
Plaintiff’s medical examination with Dr. Kevin Ehrhart. Plaintiff’s counsel indicated Plaintiff was
available at that date and time for the medical examination. However, Plaintiff’s counsel later indicated
it would not produce Plaintiff for the medical examination unless Defendant’s
motion was deemed a motion to re-open all discovery and not for the limited
purpose of compelling and conducting Plaintiff’s defense medical
examination. (Declaration of Amy Lewis, ¶¶
4-8.) Given Plaintiff’s apparent
unwillingness to appear for a medical examination, Defendant seeks an order compelling
Plaintiff to appear for the medical examination with Dr. Ehrhart and reopening
discovery for that limited purpose.
As
an initial matter, the Court finds good cause exists to reopen discovery. As noted in the Court’s previous order, Plaintiff
has placed her physical condition in question by initiating this action. Further, discovery is reopened for the
limited purpose of conducting Plaintiff’s medical examination. No other basis for reopening discovery has
been submitted or raised by either party.
And, as the foregoing suggests, the Court finds Defendant is entitled to
an order compelling Plaintiff to appear for a medical examination with Dr.
Ehrhart on November 8, 2023 at 3:30 p.m.
Plaintiff has not filed any opposition or supplemental opposition that
directs a different result.
Monetary Sanctions
Defendant
seeks sanctions against Plaintiff and her counsel. As the Court has granted this motion,
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 her
counsel in the sum of $2,810, representing 3 hours at defense counsel’s hourly
rate, $2,000 for Dr. Ehrhart’s cancellation fee in connection with the April
17, 2023 medical examination, and $60 in filing fees.
IV. CONCLUSION
The
motion, construed as a motion to compel Plaintiff’s medical examination and to
reopen discovery for that limited purpose, is GRANTED. Discovery is reopened for the limited purpose
of conducting Plaintiff’s medical examination.
Plaintiff is ordered to appear for a medical examination with Dr. Kevin
Ehrhart on November 8, 2023 at 3:30 p.m.
The
request for sanctions is GRANTED.
Plaintiff and her counsel of record are ordered to pay, jointly and
severally, sanctions in the sum of $2,810 to Defendant, by and through its
counsel, within 30 days of the date of this order.
Moving party to give notice.
Dated: October 24,
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.