Judge: Lisa R. Jaskol, Case: 19STCV38110, Date: 2024-04-29 Tentative Ruling
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Case Number: 19STCV38110 Hearing Date: April 29, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On October 22, 2019, Plaintiff Chellie Schou (“Plaintiff”) filed this action against Defendants City of Los Angeles (“Defendant”) and Does 1-20 for negligence and dangerous premises.
On May 7, 2020, Defendant filed an answer.
On February 7, 2024, Defendant filed a motion to compel Plaintiff’s mental examination and to reopen discovery to allow Defendant to conduct the mental examination, to be heard on April 26, 2024. The Court continued the hearing to April 29, 2024. On March 29, 2024, Plaintiff filed an opposition. On April 17, 2024, Defendant filed an amended notice of motion. On April 22, 2024, Defendant filed a reply.
Trial is currently scheduled for May 24, 2024.
PARTIES’ REQUESTS
Defendant asks the Court to compel Plaintiff’s mental examination and reopen discovery to allow Defendant to conduct the examination.
Plaintiff asks the Court to deny the motion and impose sanctions on Defendant.
LEGAL STANDARD
A. Motion to compel mental examination
Code of Civil Procedure section 2032.310 provides:
“(a) If any party desires to obtain discovery . . . by a mental examination, the party shall obtain leave of court.
“(b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides in part:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.
* * *
“(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:
“(1) The court determines that there is good cause for the travel involved.
“(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”
(Code Civ. Proc., § 2032.320, subds. (a), (d), (e).)
B. Motion to reopen discovery
Code of Civil Procedure section 2024.020 provides:
“(a) Except as otherwise provided in this chapter, 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 the trial of the action.
“(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.”
(Code Civ. Proc., § 2024.020.)
Code of Civil Procedure section 2024.050 provides:
“(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 under Section 2016.040.
“(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:
“(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.
“(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.
“(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, 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., § 2024.050.)
Code of Civil Procedure section 2016.040 provides:
“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”
(Code Civ. Proc., § 2016.040.)
DISCUSSION
Defendant asserts that Plaintiff’s mental examination is “essential to the proper trial of this case” because Plaintiff has placed her mental condition at issue. (Motion p. 2.) As Defendant points out, in her complaint Plaintiff alleged that she suffered mental and emotional distress as a result of the incident that gave rise to her lawsuit. (See Motion p. 4 [“Plaintiff’s mental condition has been placed in controversy by her Complaint”].)
Nonetheless, Defendant evidently made no effort to schedule Plaintiff’s mental examination from May 7, 2020 (when Defendant filed its answer) to late November 2023, when the attorney assigned to the case left the City Attorney’s office and the City Attorney’s Office assigned a new attorney to the case. The newly assigned attorney obtained the City’s approval to retain a mental health expert to conduct the examination. Defendant then filed this motion.
Defendant has not explained why it did not previously request leave to conduct Plaintiff’s mental examination. The Court finds that Defendant’s failure to demonstrate diligence precludes a finding of good cause under Code of Civil Procedure section 2032.320, subdivision (a). Therefore, the Court denies the motion.
Plaintiff requests sanctions of $2,120.00, based on seven hours of attorney time at a rate of $300.00 per hour and “parking charges.” The Court awards sanctions of $500.00, based on 2 hours of attorney time at a reasonable rate of $250.00 per hour.
CONCLUSION
The Court DENIES Defendant City of Los Angeles’s motion to compel Plaintiff’s mental examination and to reopen discovery.
The Court GRANTS IN PART Plaintiff Chellie Schou’s request for sanctions and orders Defendant City of Los Angeles to pay Plaintiff Chellie Schou $500.00 by May 29, 2024.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.