Judge: Lisa R. Jaskol, Case: 21STCV18554, Date: 2024-01-02 Tentative Ruling

Case Number: 21STCV18554    Hearing Date: January 2, 2024    Dept: 28

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

BACKGROUND 

On May 18, 2021, Plaintiffs Ksenia Petropavlovskaya and Gennadi Sinsky filed this action against Defendants Ali A. Hatam, Argyle Villas, LLC, and Does 1-100 for premises liability, general negligence, breach of contract, and loss of consortium. 

On July 30, 2021, Defendants Ali A. Hatam and Argyle Villas, LLC (“Defendants”) filed an answer. 

On August 30, 2022, the Court granted the parties’ stipulated request to continue the trial from November 15, 2022 to June 22, 2023 and to base all discovery and motion cut-off dates on the new trial date. 

On June 2, 2023, the Court granted the parties’ stipulated request to continue the trial from June 22, 2023 to January 25, 2024 and to base all discovery and motion cut-off dates on the new trial date. 

On December 7, 2023, Defendants filed a motion (1) to compel Plaintiff Ksenia Petropavlovskaya (“Plaintiff”) to complete her physical examination, (2) to continue the trial and reopen discovery, and (3) for sanctions.  The motion was set for hearing on January 2, 2024.  On December 18, 2023, Plaintiffs filed an opposition and request for sanctions.  On December 22, 2023, Defendants filed a reply. 

Trial is currently scheduled for January 25, 2024. 

PARTIES’ REQUESTS 

Defendants ask for an order compelling Plaintiff to complete her physical examination on January 25, 2024, at 1:30 p.m. with Hillel Sperling, M.D., whose specialty is orthopedic surgery, at 5620 Wilbur Avenue, Ste. 203, Tarzana, California 91356.  Defendants also ask the Court to continue the trial, reopen discovery, and award sanctions. 

Plaintiff asks the Court to deny the motion and impose sanctions. 

LEGAL STANDARD 

A.   Motion to compel physical examination 

Code of Civil Procedure section 2032.220 provides: 

“(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: 

“(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. 

“(2) The examination is conducted at a location within 75 miles of the residence of the examinee. 

“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first. 

“(c) A demand 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 physician who will perform the examination. 

“(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time. 

“(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.” 

(Code Civ. Proc., § 2032.220.) 

Code of Civil Procedure section 2032.230 provides:  

“(a) The plaintiff to whom a demand for a physical examination under this article is directed shall respond to the demand by a written statement that the examinee will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination. 

“(b) Within 20 days after service of the demand the plaintiff to whom the demand is directed shall serve the original of the response to it on the defendant making the demand, and a copy of the response on all other parties who have appeared in the action. On motion of the defendant making the demand, the court may shorten the time for response. On motion of the plaintiff to whom the demand is directed, the court may extend the time for response.” 

(Code Civ. Proc., § 2032.230.) 

Code of Civil Procedure section 2032.240 provides: 

“(a) If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand. The court, on motion, may relieve that plaintiff from this waiver on its determination that both of the following conditions are satisfied: 

“(1) The plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230. 

“(2) The plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. 

“(b) The defendant may move for an order compelling response and compliance with a demand for a physical examination. 

“(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 compel response and compliance with a demand for a physical examination, 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. 

“(d) If a plaintiff then fails to obey the order compelling response and compliance, the court 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 impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” 

(Code Civ. Proc., § 2032.240.) 

Code of Civil Procedure section 2032.510 provides: 

“(a) The attorney for the examinee or for a party producing the examinee, or that attorney’s representative, shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination. 

“(b) The observer under subdivision (a) may monitor the examination, but shall not participate in or disrupt it. 

“(c) If an attorney’s representative is to serve as the observer, the representative shall be authorized to so act by a writing subscribed by the attorney which identifies the representative. 

“(d) If in the judgment of the observer the examiner becomes abusive to the examinee or undertakes to engage in unauthorized diagnostic tests and procedures, the observer may suspend it to enable the party being examined or producing the examinee to make a motion for a protective order. 

“(e) If the observer begins to participate in or disrupt the examination, the person conducting the physical examination may suspend the examination to enable the party at whose instance it is being conducted to move for a protective order. 

“(f) 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 for a protective order under this section, 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., § 2032.510.) 

          Code of Civil Procedure section 2032.310 provides: 

“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or 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: 

“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. 

“(b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances. 

“(c) A stipulation by a party under this subdivision shall include both of the following: 

“(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed. 

“(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages. 

“(d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. 

“(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.) 

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.) 

B.   Motions to continue trial and continue or reopen discovery

California Rules of Court, rule 3.1332(b), provides 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.” 

Under California Rules of Court, rule 3.1332(c), the Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. 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(d).)  

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.) 

DISCUSSION 

A.   Defendants’ motion to compel Plaintiff to complete physical examination 

On October 19, 2023, Defendants served a demand for Plaintiff’s physical examination by Dr. Sperling, to take place on November 7, 2023. 

On November 2, 2023, Plaintiffs served objections which stated in part: 

“Counsel for Plaintiff plans to attend the examination with the Plaintiff. It is requested that defense counsel requesting this examination, or his/her representative, be available by telephone on the date and time of the examination to resolve any conflicts that may arise if and when defendant's physician asks any questions beyond the permissible scope as designated by the Court in Sharff. If a dispute arises between Plaintiff's counsel and Defendant's doctor regarding the permissible scope of questioning, and defense counsel, nor a representative is available to resolve the dispute, then Plaintiff's counsel will use his/her own best judgment under the circumstances in determining whether or not to terminate the exam.”  (Objections ¶ 8.) 

On November 7, 2023, Plaintiff appeared for her examination.  Debby Weissman (“Weissman”), Plaintiff’s “legal nurse consultant” (according to Defendants) or “hired nurse observer” (according to Plaintiffs), accompanied Plaintiff.  Weissman had equipment to create an audio recording of the examination.  Weissman also used her mobile phone to call Kristen Gray (“Gray”), Plaintiffs’ counsel.  According to Defendants, Weissman informed Dr. Sperling that Gray would attend the examination telephonically.  According to Plaintiffs, Gray was on the phone “to merely monitor to the examination and be available to answer any questions should a legal dispute arise.” 

Dr. Sperling refused to examine Plaintiff while someone was on the phone with Weissman.  (Defendants state that Dr. Sperling provided a reasoned explanation for his position.  Plaintiffs contend that Dr. Sperling stormed out of the room, returned, and reiterated his position without explanation.) Gray stated that the examination could not proceed unless she could attend the examination telephonically. 

The parties disagree about who terminated the examination, although they agree that the examination never began.  Defendants argue that Gray terminated the examination and informed Defendants’ counsel that Plaintiff would not be produced for another examination.  Plaintiffs argue that Dr. Sperling terminated the examination, stating Gray’s presence on the phone was a HIPAA violation.  The Court finds that it is not necessary to resolve this factual dispute. 

Plaintiffs’ counsel later offered to make Plaintiff available for an examination by Dr. Sperling, on the condition that the nurse observer was present in person and Plaintiffs’ counsel was present by telephone.  Plaintiffs offered to provide a HIPAA waiver to address Dr. Sperling’s concerns.  Defendants did not respond to the offer and filed this motion. 

Dr. Sperling was justified in refusing to proceed with the examination while Plaintiffs’ counsel’s representative (Weissman) was using her mobile phone to enable Plaintiffs' counsel (Gray) to participate telephonically in the examination.  Code of Civil Procedure section 2032.510, subdivision (a), provides that “[t]he attorney for the examinee . . . , or that attorney’s representative, shall be permitted to attend and observe” a physical examination.  (Code Civ. Proc., § 2032.510, subd. (a), emphasis added.)  By its terms, the statute requires counsel to choose whether to attend the examination or whether to send a representative.  The statute does not authorize the attendance of both the examinee’s attorney and the attorney’s representative. 

In addition, Dr. Sperling’s concern about a potential HIPAA violation supported his refusal to proceed while Gray was on the telephone.  Dr. Sperling could not determine whether people aside from Gray were listening to the examination on the phone, or making recordings, in violation of Plaintiff’s HIPAA rights.  Plaintiffs’ subsequent offer to waive Plaintiff’s HIPAA rights does not change the facts that Dr. Sperling faced on November 7, 2023. 

The Court grants Defendants’ motion to compel a physical examination under Code of Civil Procedure section 2032.240, subdivision (b).  The Court also finds good cause to compel Plaintiff’s further physical examination under Code of Civil Procedure 2023.310. 

Defendants request $2,435.6416 in sanctions based on 11.7 hours of attorney time at a rate of $160.17 per hour, one $61.65 filing fee, and Dr. Sperling’s invoice for $500 for November 7, 2023.  Counsel spent 1.4 hours on meet and confer communications with opposing counsel and 7.5 hours to prepare the motion and separate statement, and anticipated spending 1.5 hours to review Plaintiffs’ opposition and prepare a reply, 1.0 hour to appear at the hearing, and 0.3 hours to prepare a notice of ruling. 

The Court grants $1,042.16 in sanctions based on three hours of attorney time, Dr. Sperling’s charges, and one filing fee. 

B.   Motions to continue trial and continue or reopen discovery 

Based on the facts stated above, the Court finds good cause to continue the trial to April 1, 2024 or to the next available date.  The final status conference, discovery deadlines, and related pre-trial dates will trail the new trial date. 

CONCLUSION 

The Court GRANTS the motion of Defendants Ali A. Hatam and Argyle Villas, LLC, to compel Plaintiff Ksenia Petropavlovskaya to complete her physical examination.  The examination will take place on January 25, 2024 at 1:30 p.m. with Hillel Sperling, M.D., whose specialty is orthopedic surgery, at 5620 Wilbur Avenue, Ste. 203, Tarzana, California 91356.  Either Plaintiffs’ counsel or a representative of Plaintiffs’ counsel may attend the examination in person; neither may attend telephonically.  

The examination will consist of the taking of an oral history with respect to Plaintiff's claimed injuries as well as some or all of the following diagnostic tests and procedures: active and passive range of motion, bending, sensory motor examination, palpation, strength testing, leg raising, gait testing, speed testing, grip strength measurement, limb measurement, Jobe testing, external and internal rotation testing, Yergason test, O’Brien Test, Belly Press test, cross-arm adduction test, apprehension test, Jamar testing, overhead reaching, reaching behind the examinee/s back, resistive-type activities motor and reflex testing, flexion, extension and rotation testing, compression testing, spurling testing, Waddell testing, pin prick sensation testing, tinel testing, motor reflex testing, testing of deep tendon reflex. The examination may also include the taking of x-rays, CT scans and/or MRI studies as deemed necessary by the examining physician. If any such studies were performed by previous doctors and Plaintiff does not wish these studies to be repeated, Plaintiff must authorize access to and make arrangements for these studies to be delivered to counsel for Defendants before the above-scheduled examination begins. 

The Court GRANTS the motion of Defendants Ali A. Hatam and Argyle Villas, LLC, to continue the trial to April 1, 2024 or to the next available date.  The final status conference, discovery deadlines, and related pre-trial dates will trail the new trial date. 

The Court GRANTS the request for sanctions of Defendants Ali A. Hatam and Argyle Villas, LLC, and orders Plaintiff Ksenia Petropavlovskaya and her counsel to pay Defendants Ali A. Hatam and Argyle Villas, LLC $1,042.16 in sanction by February 5, 2024. 

Moving parties are ordered to give notice of this ruling. 

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