Judge: Lisa R. Jaskol, Case: 19STCV92461, Date: 2023-11-14 Tentative Ruling
Case Number: 19STCV92461 Hearing Date: November 14, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On January 24, 2019, Plaintiff Sampuran Sandhu (“Plaintiff”) filed this action against Defendants Ahmadi Masoumeh (“Defendant”) and Does 1-50 for negligence.
On February 16, 2022, Intervenor Helmsman Third Party Administrator (“Intervenor”) filed an answer in intervention as insurer for Defendant.
On September 1, 2023, Intervenor filed a motion for sanctions to be heard on November 14, 2023. Plaintiff has not filed an opposition.
Trial is currently set for March 5, 2024.
INTERVENOR’S REQUEST
Intervenor
requests that the Court order Plaintiff pay $2,835.00 in monetary sanctions to
Intervenor and impose issue sanctions on Plaintiff.
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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. “(e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court. “(f) (1) Notwithstanding subdivision (a), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. “(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.” (Code Civ. Proc., § 2023.030.) 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.) DISCUSSION |
On June 21, 2023, the Court granted Intervenor’s motion to compel Plaintiff to attend a neurological medical examination and ordered Plaintiff to appear for a neurological medical examination with Dr. Barry Ludwig at 2811 Wilshire Blvd., Suite 508, Santa Monica, CA 90403, within 30 days of the hearing on the motion.
On June 23, 2023, via email, Intervenor proposed June 29, 2023 for the examination. Plaintiff did not respond. On June 27, 2023, Intervenor spoke with Plaintiff’s counsel, but Plaintiff’s counsel could not commit to Plaintiff’s attendance at the examination.
On June 28, 2023, Plaintiff’s counsel informed Intervenor that Plaintiff could not attend the June 29, 2023 examination. Intervenor agreed to postpone the examination to the next date Dr. Ludwig was available rather than requesting further court intervention.
On July 18, 2023, Intervenor informed Plaintiff’s counsel that the examination would take place on August 14, 2023. Plaintiff did not respond.
On August 7, 2023, Intervenor sought confirmation that Plaintiff would attend the August 14, 2023 examination. Plaintiff did not respond.
On August 11, 2023, Intervenor again sought confirmation that Plaintiff would attend the August 14, 2023 examination. Plaintiff did not respond.
Plaintiff did not attend the August 14, 2023 examination. As a result, Intervenor was assessed a fee of $1,200 for the failure to appear.
Intervenor asks the Court to grant issue sanctions precluding Plaintiff from presenting evidence at trial to support his claim for damages associated with a traumatic brain injury as well as monetary sanctions.
By violating the Court’s order to attend a neurological examination within 30 days of the June 21, 2023 hearing, Plaintiff has impaired Intervenor’s ability to defend against Plaintiff’s claim for damages based on a traumatic brain injury. Therefore, the Court grants Intervenor’s request for an issue sanction barring Plaintiff from introducing evidence that Plaintiff suffered a traumatic brain injury as a result of Defendants’ alleged negligence.
Intervenor also seeks $2,835 in monetary sanctions consisting of the fees and costs Intervenor incurred in filing this motion ($1,635) and the fee assessed against Intervenor when Plaintiff failed to appear for the court-ordered neurological examination on August 14, 2023 ($1,200). To prepare the motion, Intervenor’s counsel spent five hours drafting the motion and anticipates spending another two hours preparing for and attending the hearing at a billing rate of $225.00 per hour. The court filing fee for this motion is $60.00.
The Court grants monetary sanctions of $1,935.00, based on 3 hours of attorney’s work, one $60 filing fee, and the $1,200 non-appearance charge.
“Monetary sanctions against the party’s attorney require a finding that the attorney advised the client’s conduct that resulted in sanctions.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:1601.5, p. 8I-26.) “The burden is on the attorney to prove the attorney had not advised the client to engage in the sanctionable conduct.” (Id., ¶ 8:1601.6, p. 8I-27.) Plaintiff’s counsel has not carried counsel’s burden of proving counsel did not advise Plaintiff to engage in the sanctionable conduct.
CONCLUSION
The Court GRANTS Intervenor Helmsman Third Party Administrator’s motion for sanctions.
The Court imposes issue sanctions preventing Plaintiff Sampuran Sandhu from introducing evidence that Defendants’ alleged negligence caused Plaintiff’s traumatic brain injuries.
The Court orders Plaintiff Sampuran Sandhu and Plaintiff's counsel to pay Intervenor $1,935.00 in monetary sanctions within 30 days of the hearing on this motion.
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.