Judge: Lisa R. Jaskol, Case: 19STCV20287, Date: 2023-06-22 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org.  Include the word "SUBMITS" in all caps and the Case Number in the Subject line.  In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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Case Number: 19STCV20287    Hearing Date: September 5, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On June 11, 2019, Plaintiff Tonya Graham (“Plaintiff”) filed this action against Defendants Jonathan Lee and Gordon Lee for negligence. 

On January 29, 2021, Defendants filed an answer. 

On October 20, 2022, the Court granted Defendants’ motion to compel Plaintiff to appear at an independent medical examination with Deven Khosla, M.D., on November 29, 2022 or on another mutually agreed upon date within 30 days of the hearing on the motion. 

On May 26, 2023, the Court granted Defendants’ motion to compel Plaintiff to appear at an independent medical examination with neuropsychologist Charles Hinkin, Ph.D., on June 10, 2023, or on another mutually agreeable date within 30 days of the hearing on the motion. 

On June 22, 2023, the Court granted Defendants’ motion for leave to take an additional physical examination of Plaintiff and ordered Plaintiff to appear for an examination by neurologist Lorne Sheldon Label, M.D., on June 26, 2023, or on another mutually agreeable date within 10 days of the hearing on the motion. 

On July 11, 2023, Defendants filed a motion for sanctions to be heard on August 23, 2023. The Court continued the hearing on the motion to September 5, 2023. On July 31, 2023, Plaintiff filed an opposition. On August 15, 2023, Defendants filed a reply. 

On August 4, 2023, the Court denied Defendants’ motions to compel Plaintiff to respond to Defendants’ demand for inspection and production of documents and special interrogatories because Plaintiff served verified responses on July 24, 2023. The Court granted Defendants’ request for sanctions and ordered Plaintiff Tonya Graham and her counsel to pay Defendants $440.34 in sanctions by September 5, 2023. 

Trial is currently scheduled for September 25, 2023. 

PARTIES’ REQUESTS 

Defendants request that the court impose issue/evidentiary sanctions or, in the alternative, terminating sanctions. Defendants also request that the Court impose $4,075.00 in monetary sanctions. 

Plaintiff requests that the Court deny the motion.

LEGAL STANDARD  

Code of Civil Procedure section 2023.030 provides in part: 

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: 

“(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that 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. 

“(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. 

“(c) The 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. 

“(d) The court may impose a terminating sanction by one of the following orders: 

“(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. 

“(2) An order staying further proceedings by that party until an order for discovery is obeyed. 

“(3) An order dismissing the action, or any part of the action, of that party. 

“(4) An order rendering a judgment by default against that party.” 

(Code Civ. Proc., § 2023.030, subds. (a), (b), (c), (d).) 

Code of Civil Procedure section 2032.410 provides: 

“If a party is required to submit to a physical or mental examination under Articles 2 (commencing with Section 2032.210) or 3 (commencing with Section 2032.310), or under Section 2016.030, but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”  (Code Civ. Proc., § 2032.410.) 

A violation of a discovery order supports the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796 (Deyo).) 

A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, supra, 84 Cal.App.3d at p. 793.) "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) 

DISCUSSION

A.   Examination by Charles Hinkin, Ph.D. 

On May 26, 2023, the Court granted Defendants’ motion to compel Plaintiff to appear at an independent medical examination with neuropsychologist Charles Hinkin, Ph.D., on June 10, 2023, or on another mutually agreeable date within 30 days of the hearing on the motion.  Plaintiff did not oppose the motion.[1] 

  Defendants assert the following: 

On June 10, 2023, Dr. Hinkin and his staff were at the location for the examination and never heard or saw Plaintiff.  Because Plaintiff failed to appear for the examination, Defendants incurred a $3,500 cancellation fee.  (Declaration of John O’Connor (O’Connor Dec.) ¶ 9.) 

On June 20, 2023, Defendants’ counsel asked Plaintiff’s counsel if Plaintiff would stipulate to withdraw her claim for traumatic brain injury and/or mental aspects of her claims since Plaintiff did not appear for the examination.  Defendants’ counsel also asked Plaintiff to pay the $3,500 cancellation fee. (O’Connor Dec. ¶ 10.) 

Plaintiff’s counsel responded on June 21, 2023, saying Plaintiff had appeared and no one responded to the "call box" downstairs. (O’Connor Dec. ¶ 11.)  In response, Defendants’ counsel questioned why Plaintiff had waited 11 days to notify Defendants of the issue and pointed out that Defendants had provided the callbox code in the motion and therefore Plaintiff did not need to wait for anyone to answer the callbox.  (O’Connor Dec. ¶ 12.) 

Plaintiff asserts the following: 

“Plaintiff presented to her appointment on June 10, 2023 which was on a Saturday. She could not gain access to the doctors office because it was behind a locked gate. Plaintiff tried to reach my office to inquire about how to attend her appointment, but the office was closed on Saturday. She waited for 45 minutes for someone to open the locked gate or pass through, to no avail.”  (Declaration of D. Hess Panah.)  Plaintiff’s counsel has tried to reschedule the examination with Defendants counsel without success. (Declaration of D. Hess Panah.) 

B.   Examination by Lorne Sheldon Label, M.D. 

On May 2, 2023, Defendants filed a motion for leave to take an additional physical examination of Plaintiff on June 26, 2023.  The examination was to be conducted by neurologist Lorne Sheldon Label, M.D.  Plaintiff did not file an opposition. 

On June 22, 2023, the Court granted the motion and ordered Plaintiff to appear at an independent medical examination with neurologist Lorne Sheldon Label, M.D., on June 26, 2023, or on another mutually agreeable date within 10 days of the hearing on the motion. 

Defendants assert that Plaintiff has not appeared for and has not agreed to appear for this examination. (O’Connor Dec. ¶ 14.) 

Plaintiff asserts that her counsel informed the Court at the hearing on June 22, 2023 that Plaintiff could not attend her examination on June 26, 2023 due to prior work commitments. (Declaration of D. Hess Panah.)  On June 28, 2023, June 29, 2023, June 29, 2023, July 5, 2023, July 11, 2023 and July 26, 2023, Plaintiff’s counsel tried to reschedule the examination with Defendants’ counsel.  (Declaration of D. Hess Panah.) 

The Court’s June 22, 2023 order required Plaintiff to appear for an independent medical examination with Dr. Label on June 26, 2023 “or on another mutually agreeable date within 10 days of the hearing on the motion.”  If Plaintiff could not attend the examination on June 26, 2023, she was required to meet and confer with Defendants to schedule the examination for another date on or before July 2, 2023. She was not free to simply disregard the Court’s order.  The Court has seen no evidence that Plaintiff’s counsel attempted to meet and confer with Defendants’ counsel between June 22, 2023 and June 26, 2023 to schedule the examination for a date on or before July 2, 2023. 

C.   The Court continues the hearing 

The Court finds that Plaintiff’s excuse for failing to attend or reschedule the examination by Dr. Label within the timeframe provided in the Court’s June 22, 2023 order lacks merit.  The Court provisionally accepts Plaintiff’s explanation of the reason for her failure to attend the examination by Dr. Hinkin.  

The Court continues the hearing on this motion to give Plaintiff one final opportunity to attend the Court-ordered examinations by Dr. Hinkin and Dr. Label. The Court also continues the trial, re-opens discovery for the sole purpose of completing these examinations, and orders the parties to meet and confer in a good faith effort to schedule Plaintiff’s examinations by Dr. Hinkin and Dr. Label.  The parties are ordered to file supplemental declarations before the next hearing date explaining their efforts to schedule these examinations.  At the next hearing, the Court will rule on Defendants’ motion for sanctions based on the original moving, opposing, and reply papers and the supplemental declarations. 

CONCLUSION 

The Court CONTINUES the motion for sanctions of Defendants Jonathan Lee and Gordon Lee to October 20, 2023, at 1:30 p.m. in Department 28 of the Spring Street Courthouse. 

The Court orders the parties to meet and confer in a good faith attempt to schedule Plaintiff’s Court-ordered examinations by Dr. Hinkin and Dr. Label on a mutually-agreeable date within 45 days from the hearing on this motion. 

The Court orders the parties to file supplemental declarations by October 16, 2023, explaining their efforts to schedule Plaintiff’s examinations by Dr. Hinkel and Dr. Label. 

The Court continues the trial to November 7, 2023, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is continued to October 24, 2023, at 10:00 a.m. in Department 28 of the Spring Street Courthouse. The Court re-opens discovery for the sole purpose of completing Plaintiff’s examinations by Dr. Hinkel and Dr. Label.  This discovery will trail the new trial date. 

Moving parties are ordered to give notice of this ruling. 

Moving party are ordered to file the proof of service of this ruling with the Court within five days.

 


[1]        Plaintiff now argues that Defendants did not comply with the procedural requirements for the motion.  (Opposition p. 4.)  Because Plaintiff did not oppose the motion, she waived any defects.