Judge Lisa R. Jaskol, Case Number: 23STCV22141, Date: 2025-04-02 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.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. 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 you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.    If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.

                            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.

        If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.

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

On September 13, 2023, Plaintiff Bejamin Franklin Parmenter (“Plaintiff”) filed this action against Defendants Robert Mark Sanford (“Sanford”) and Does 1-50 for negligence.

On April 9, 2024, Plaintiff amended the complaint to include Defendant Prime Healthcare Services, Inc. as Doe 1. On May 6, 2024, Defendant Prime Healthcare Services, Inc. filed an answer.

On June 21, 2024, based on the parties’ stipulation, the Court ordered that “Doe Defendant 1, previously identified as Prime Healthcare Services Inc. is changed to Prime Healthcare Management Inc. for all purposes in relation to the above-entitled litigation pursuant to this Court’s authority as set forth in Code of Civil Procedure section 473(a)(1) and that the Answer filed by Prime Healthcare Services Inc. on May 6, 2024, is hereby deemed to have been filed by Defendant Prime Healthcare Management Inc. on that date.”

On January 2, 2025, Defendants Sanford and Prime Healthcare Management Inc. (“Defendants”) filed a motion to continue the trial and related dates. The motion was set for hearing on February 6, 2025. On January 24, 2025, Plaintiff filed an opposition. On January 30, 2025, Defendants filed a reply. On February 3, 2025, Defendants filed a “sur-reply,” which the Court has not considered.

2. Defendants’ motion for leave to conduct Plaintiff’s mental examination

On January 24, 2025, Defendants filed a motion for leave to conduct Plaintiff’s mental examination. The motion was set for hearing on February 21, 2025. On February 6, 2025, Plaintiff filed an opposition. On February 13, 2025, Defendants filed a reply.

On January 30, 2025, Defendants filed a motion to compel compliance with a subpoena for production of Plaintiff’s military records. The motion was set for hearing on April 2, 2025. On March 19, 2025, Plaintiff filed an opposition. On March 21, 2025, Defendants filed a notice of U.S. military’s non-opposition to the motion.

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.

“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.

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:

“(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

“(2) The unavailability of a party because of death, illness, or other excusable circumstances;

“(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

“(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

“(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

“(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

“(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

“(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:

“(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

“(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

“(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

“(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

“(7) The court's calendar and the impact of granting a continuance on other pending trials;

“(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

“(11) Any other fact or circumstance relevant to the fair determination of the motion or application.”

“Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.”

“(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:

“(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.”

Defendants ask the Court to continue the trial to September 2025 and to continue trial-related dates. According to Defendants, they have experienced delays in obtaining Plaintiff’s discovery responses and military records on which Plaintiff relies to support a potential claim for lost future earning capacity.

In response, Plaintiff argues that Defendants have not been diligent in completing discovery.

II. DEFENDANTS’ MOTION FOR LEAVE TO CONDUCT PLAINTIFF’S MENTAL EXAMINATION

“(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.”

“(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:

“(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.”

Defendants argue that Plaintiff has placed his mental condition in controversy, showing good cause for a mental examination under Code of Civil Procedure section 2032.320, subdivision (a).

In response, Plaintiff stipulates under Code of Civil Procedure section 2032.320, subdivisions (b) and (c), that, if the Court denies Defendants’ motion, “Plaintiff will waive claims of cognitive impairment or mental distress damages, beyond garden variety damages that the Code of Civil Procedure will allow in the absence of a claim for psychological damages and will not present neuropsychological expert opinion at trial.” (Opposition p. 2.) Based on the stipulation, Plaintiff argues there is no good cause or exceptional circumstances to permit Defendants to conduct Plaintiff’s mental examination.

The Court finds that Plaintiff’s stipulation complies with the requirements of Code of Civil Procedure section 2032.320, subdivisions (b) and (c), and Defendants have not shown exceptional circumstances warranting a mental examination. (See Code Civ. Proc., § 2032.320, subds. (b), (c).)

Based on these findings, the Court denies Defendants’ motion for leave to conduct Plaintiff’s mental examination and orders that (1) Plaintiff may make no claim for mental and emotional distress over and above that usually associated with the physical injuries Plaintiff claims and (2) no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of Plaintiff’s claim for damages.^{^[1]} (See Code Civ. Proc., § 2032.320, subd. (c).)

III. DEFENDANTS’ MOTION TO COMPEL COMPLIANCE WITH SUBPOENA FOR PRODUCTION OF PLAINTIFF’S MILITARY RECORDS

“(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

“(5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.

“(c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6.”

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

“(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

“(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.

“(j) 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 an answer or production, 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.”

Defendants subpoenaed Plaintiff’s service records from the United States Space Force Space Systems Command (“Space Force”). The Space Force declined to produce the records without a court order or Plaintiff’s authorization. Defendants now ask the Court to compel the Space Force to comply with the subpoena to produce Plaintiff’s service records.

Although the motion is directed at Space Service, the proofs of service attached to the motion and supporting papers do not show that Defendants served the motion or supporting papers on Space Force. (See Code Civ. Proc., § 2025.480, subd. (c) [“Notice of this motion shall be given to . . . the deponent either orally at the examination, or by subsequent service in writing”].) Indeed, Defendants were required to personally serve the motion and supporting papers on Space Force. (See Cal. Rules of Court, rule 3.1346 [“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record”].) Defendants have not shown that Space Force agreed to accept service by mail or electronic service.

On March 21, 2025 – after the close of briefing – Defendants filed a document titled “Notice of US Military’s Non-Opposition to Defendant’s Motion to Compel Compliance with Subpoena.” The notice includes a March 19, 2025 email from Defendants’ counsel to Major Nathan K. Zahrt of Space Systems Command stating, “Attached please find our motion to compel compliance with subpoena to obtain the requested court order pursuant to your correspondence. Please advise if there is any opposition.” The notice also includes Major Zahrt’s March 20, 2025 response: “Received, thank you. Space Systems Command does not have a position on this motion to compel.”

Defendants filed their motion to compel Space Service’s compliance with Defendants' subpoena on January 30, 2025. Defendants’ March 19, 2025 email sending the motion to Space Service does not satisfy Defendants' service obligations.

The Court does not view Major Zahrt’s March 20, 2025 emailed statement (that Space Systems Command does not have a position on the motion to compel) as a waiver of the defective service. Defendants have not shown that Space Service was aware of the defective service or intended to waive it. (See DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60 [“ ‘ “Waiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations].’ ”].)

The Court GRANTS in part the motion of Defendants Robert Mark Sanford and Prime Healthcare Management Inc. to continue the trial. The Court continues the trial to June 23, 2025 or the next available date. The final status conference, discovery, and related dates and deadlines will be based on the new trial date. In all other respects, the Court DENIES the motion. The Court will provide the new trial and final status conference dates at the April 2, 2025 hearing.

The Court DENIES without prejudice the motion of Defendants Robert Mark Sanford and Prime Healthcare Management Inc. to compel United States Space Force Space Systems Command to comply with Defendants’ subpoena for production of records.

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

[1] Defendants suggest that Plaintiff’s stipulation also must promise to exclude evidence about (1) marital problems resulting in severe depression, (2) arguments with Plaintiff’s wife resulting in severe depression and suicidal ideations, (3) any and all [sic] as to anxiety and aggression, (4) any and all references to being diagnosed with a “mood disorder,” and (5) marital intimacy issues.” The question whether Plaintiff’s stipulation under Code of Civil Procedure section 2032.320 encompasses some, all, or none of this evidence is not currently before the Court.