Judge: Loren G. Freestone, Case: 37-2021-00049926-CU-OE-CTL, Date: 2023-09-01 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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HALL OF JUSTICE
TENTATIVE RULINGS - August 31, 2023
09/01/2023 10:30:00 AM C-64 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Loren G. Freestone
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Civil - Unlimited Other employment Discovery Hearing 37-2021-00049926-CU-OE-CTL FONSECA VS RIVULIS IRRIGATION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:
TENTATIVE RULING Defendant Rivulis Irrigation Inc.'s motion for sanctions is GRANTED IN PART and DENIED IN PART.
Issue/Evidentiary Sanctions Rivulis moves 'for an order finding that Plaintiff may not present any medical, scientific, or psychiatric evidence or otherwise claim special emotional distress damages at trial.' Rivulis argues that Fonseca violated the stipulation and order for her remote mental examination. An issue or evidentiary sanction can only be imposed for such a violation if doing so would be 'just.' (See Code Civ. Proc. § 2032.410.) Absent unusual circumstances, nonmonetary sanctions are warranted only if a party willfully fails to comply with a court order. (See Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.) 'Willful,' in this sense, means a 'conscious or intentional failure to act as distinguished from accidental or involuntary noncompliance.' (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 227–228.) Here, Fonseca admittedly failed to appear, but she explains that it was not intentional.
Fonseca declares that the email with the Zoom link was not sent until less than 24 hours before the scheduled IME. There is no evidence that the office conducting the IME had sent any other emails to Fonseca before then. Fonseca declares that she did not open the email with the Zoom link because she thought it was spam. She notes that the email came from a Gmail account instead of a professional domain, and that the subject line did not indicate that it was related to the case or the psychological evaluation. Fonseca's attorney was not cc'd on the email, and therefore he was unable to alert her to it.
When the issue came to light, Fonseca offered to reschedule the IME. The Court finds that is not the type of violation warranting nonmonetary sanctions.
In its reply, Rivulis argues that it should not be forced to rush through an IME now when trial is in November. Yet this motion was filed in March. If Rivulis had accepted Fonseca's offer, there would have been months to reschedule. Notably, Fonseca made her offer notwithstanding the March discovery cutoff (an offer that could have been memorialized in a stipulation just as the parties stipulated to hear this motion after the cutoff). Rivulis cannot ignore a reasonable offer to reschedule hoping to come out ahead with a nonmonetary sanction. (See Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 ['sanctions may not be imposed solely to punish the offending party' and 'should not provide a windfall to the other party'].) Rivulis also argues that Fonseca gave a false address for her treating psychologists in response to Form Calendar No.: Event ID: TENTATIVE RULINGS
3006817 32 CASE NUMBER: CASE TITLE: FONSECA VS RIVULIS IRRIGATION INC [IMAGED] 37-2021-00049926-CU-OE-CTL Interrogatory – Employment No. 212.4. Again, an evidence sanction would only be warranted if Fonseca knew the address was incorrect when she served her response. (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1323–1325; accord Mitchell v. Superior Court (2015) 243 Cal.App.4th 269, 272.) Here, Fonseca provided the address that was listed on the report prepared by her treating psychologists. The report is dated December 2021. Fonseca's interrogatory response is from February 2023, and it indicates that she has not seen the psychologists any time after the report was prepared. The treating psychologists were also identified as percipient witnesses, not designated experts. There is no evidence Fonseca knew the address was either incorrect or outdated at the time she provided it in discovery. As such, the requested nonmonetary sanction is not justified on this basis either.
Monetary Sanctions Rivulis also moves for monetary sanctions in differing amounts up to $7,346.
'A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.' (Code Civ. Proc., § 2023.040.) Here, the caption on the notice of motion makes no reference to monetary sanctions. The body of the notice of motion does make such a reference, but it only states that 'Defendant further requests monetary sanctions in the amount of $4,879' and 'Defendant requests monetary sanctions of $7,346.' The notice never identifies who the monetary sanctions are sought against-Fonseca, her attorney, or both. As the notice is defective, monetary sanctions are denied.
Second Order Compelling IME and Time for Other Additional Discovery Rivulis also moves for 'a second order compelling Plaintiff to submit to an [IME] and more time to complete discovery on Plaintiff's emotional distress claim.' As noted, Fonseca previously offered to reschedule her IME, and nothing in her opposition indicates that offer has been withdrawn. Another order compelling her IME is therefore appropriate.
However, as to its request for more time to complete other discovery, Rivulis never identifies or discusses each of the considerations relevant to whether discovery should be reopened. (See Code Civ. Proc., § 2024.050) Rivulis was also previously adamant that discovery should not be reopened.
(ROA #161.) The request is therefore denied.
Conclusion Rivulis has failed to demonstrate that nonmonetary sanctions are warranted, and its request for monetary sanctions is procedurally improper. Both requests are therefore denied.
However, consistent with her previous offer, Fonseca shall make herself available for a rescheduled IME to occur within 30 days. No other discovery shall occur except as stipulated to by the parties.
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