Judge Mark A. Young, Case 20STCV35276 2023-01-19 Tentative Ruling

“Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP, § 2017.010.)

Service of a proper deposition notice obligates a party or “party-affiliated” witness (officer, director, managing agent or employee of party) to attend and testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying. (CCP § 2025.280(a).) If, after service of a deposition notice, a party deponent fails to appear, testify, or produce documents or tangible things for inspection without having served a valid objection under CCP § 2025.410, the deposing party may move for an order compelling attendance, testimony, and production. (CCP § 2025.450(a).) The motion must be accompanied by a meet and confer declaration, or, when a party deponent fails to attend the deposition, the motion must also be accompanied by a declaration stating that the moving party has contacted the party deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

A motion to compel production of documents described in a deposition notice must be accompanied by a showing of good cause. (CCP § 2025.450(b)(1).) In other words, the moving party must provide evidence (generally in the form of declarations) showing specific facts justifying inspection of the documents described in the notice. Courts liberally construe good cause in favor of discovery where facts show the documents are necessary for trial preparation.

The statute requires a “certified copy” of “any parts” of the transcript lodged. (CCP § 2025.480(h).) The moving party must “lodge” with the court, at least 5 days before the hearing on the motion, a certified copy of whatever parts of the transcript are relevant to the motion.

The motion to compel must be “made no later than 60 days after the completion of the record of the deposition.” (CCP § 2025.480(b).) This time limit also applies to motions based on a deposition subpoena for production of documents or a business records subpoena. The 60-day time limit runs from the date objections are served because the deposition record is then complete. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

Defendants timely served valid deposition notices against Plaintiffs Dash and Horn. On November 30, 2022, Defendants noticed Dash and Horn’s individual depositions, scheduling the depositions for December 19 and 20, respectively. (Aloyan Decl., ¶ 5, Ex. 5, 6.) Links to attend these depositions were sent to Plaintiffs’ Counsel on December 13, 2022. (Id., Ex. 7.) Plaintiff’s Counsel responded that he would prefer “dates toward the end of January or early February” but did not serve an objection (Aloyan Decl., ¶ 7, Ex. 3) Notably, the end of January and early February were beyond the discovery cutoff. Otherwise, Plaintiffs refused to stipulate to continue the trial, or to submit to Defendants’ right to depose Plaintiffs before the discovery cutoff. (Aloyan Decl., ¶10, Ex. 2, 3.)

Here, Plaintiffs did not serve any objection to the deposition notice and failed to appear at their respective depositions. (Aloyan Decl., ¶¶ 7, 9, 10, Ex. 2, 3, 4.) Accordingly, Defendants’ motions are GRANTED.

Defendants request that sanctions be issued in the amount of $2,144.65 against Plaintiffs and counsel of record. More specifically, sanctions are sought against both Plaintiffs in the amount of $2,144.65. This breaks down as follows: a) $308.50 for time in the deposition, taking the notice of nonappearance, and reporter fees (Aloyan Decl., ¶13-17, Ex. 8); and b) $1,836.15 for bringing this motion ($1,189.50 for 6.1 hours of work, costs of $61.65, and $585.00 for an anticipated 3 hours in reply to Plaintiff’s opposition and appearance (Aloyan Decl., ¶¶ 13-17).

Given that there was no opposition, and thus no need to reply, the amount of sanctions is overstated with respect to the anticipated reply brief.

Accordingly, the Court will grant a reasonable sanction of $1,559.65 against Plaintiffs and counsel of record, jointly and severally, and payable within 30 days.

INDEPENDENT MEDICAL EXAMS

“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.” (CCP, § 2032.220(a).)¿¿“If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff's response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (§ 2032.250(a).)¿¿

“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (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.” (Id., § 2032.430(a), (d).)¿

A motion for an examination shall be accompanied by a meet and confer declaration. (CCP § 2032.310(b).)

On December 2, 2022, Defendants noticed both Plaintiffs Dash and Horn’s individual IMEs for January 3, 2023, with Dr. Robert Eitches at Tower Allergy, in Los Angeles. (Aloyan Decl., ¶2, Exh. 1.) Plaintiffs’ counsel did not respond in any way to the IME notice – whether an objection, request for different dates, or stipulation to waive their injury claims. Plaintiffs were sent a reminder of the IME by Dr. Eitches’ office on December 30 2022 at 5:20pm. (Aloyan Decl., ¶3, 5, Exh. 2.) On December 30, 2023, Plaintiff’s counsel responded to the doctor’s courtesy-reminder of the IME that “[his] clients are unavailable. Please coordinate with defense counsel.” (Aloyan Decl., ¶6, Exh. 3.)

Plaintiffs allege personal injury resulting from alleged exposure to mold. Specifically, Plaintiffs assert in discovery responses that they “suffer from exposure to mold and hazardous conditions . . . the complaints are ongoing and [remain] the same. Such Complaints occur daily.” (See. Aloyan., Decl. 4 Exh. 4.) Under these facts, Plaintiffs seek recovery for personal injuries, and thus their physical condition is at-issue.

Plaintiffs failed to appear for their respective IMEs noticed for January 3, 2023, without serving any valid objection. Accordingly, Defendants’ motions to compel IMEs are GRANTED.

Defendants request that Plaintiffs and/or his attorney be sanctioned in the amount of $2,051.15 for the IMEs. This breaks down as follows: a) 6.1 hours counsel’s time preparing the instant motions, $1,189.50; b) the cost to file the instant motion to compel, $61.65; and c) cost of the IME examination, $800.00 (each). Based on this showing, the Court will award reasonable sanctions in the amount of $2,051.15.

Defendants’ motions are GRANTED. Counsel are ordered to meet and confer with three days and schedule the depositions and IMEs within 10 days. Sanctions are granted in favor of Defendants and against Plaintiffs/counsel of record in the total amount of $3,610.75, jointly and severally. Sanctions are to be paid within 30 days to defense counsel.