Judge: Mark H. Epstein, Case: 19SMCV02200, Date: 2023-04-07 Tentative Ruling

Case Number: 19SMCV02200    Hearing Date: April 7, 2023    Dept: R

At the heart of this motion is what defendant claims is a blatant refusal by plaintiff to follow the court’s order that she submit to certain medical tests.  The form of the motion leading to the prior order was to compel plaintiff to appear for the examination; it was not a motion for leave to take it.  Plaintiff objected on the theory that the motion was not proper: it should have been a motion for leave to take a second IME.  The court ultimately agreed with defendant that plaintiff’s objection put form over substance.  Plaintiff is correct as a technical matter; the best way to have proceeded would be to seek leave to take a second IME.  Presumably, the requested IME would have been attached to the motion and would have provided the exact same information as was in the moving papers that were filed.  Under the circumstances of this case, it is hard to see how such a request would have been denied, and the order granting the request would have directed plaintiff to submit to the examination.  Plaintiff’s other concerns about the form of the request were not viewed as compelling to the court.  True, the court was concerned as to the form of the service and required defendant to re-serve the notice, but the court did not hold that the notice lacked adequate specificity.  As such, the court ordered the second IME.  The court was also somewhat troubled that plaintiff’s counsel had stated that plaintiff would agree to the second IME but only if defendant agreed not to attempt to introduce the Santa Monica Rent Control Board’s decision in what the defense contends is a factually-related proceeding.  The Rent Board’s decision may or may not be admissible; but horse trading the IME for an evidentiary agreement on a separate topic is not an appropriate quid pro quo.  While there is nothing unethical or improper in making the suggestion, there is nothing proper about refusing a second IME that would appear to be more than appropriate unless the other side agrees to an unrelated condition.

According to defendant, defendant tried to have the examination take place consistent with the court’s order.  Defendant states that the parties agreed that the examination would occur on January 31, 2023.  However, on January 25, 2023, plaintiff (apparently not through counsel) informed defense counsel that she would not appear.  Defense counsel states that plaintiff’s counsel was unaware of plaintiff’s action when defense counsel inquired.  Even so, as a result of plaintiff’s statement that she would not appear and no contrary assurance from plaintiff’s counsel, defendant cancelled the appointment to avoid a no-show fee.  The defense states that plaintiff has not provided any justification for her decision not to appear for the examination.  In opposition, plaintiff claims that service of the IME date was too soon and therefore improper.  Plaintiff also contends that it was the defense that cancelled the appointment.  Plaintiff further argues that the prior motion should have been denied on procedural grounds. 

This has got to stop.  The court ordered that the examination was to occur in January.  The court found that the stated scope was adequately described but asked defendant to re-iterate the tests to be given, which he did.  The parties apparently agreed that the IME would take place on January 31, 2023 and the cancellation was not done by the defense; it was done by plaintiff.  While under most circumstances the amount of notice would be inadequate, that is not the case where the date is set by agreement.  And it beggars reason to fault the defendant for cancelling an IME after plaintiff had stated that she would not attend it.  Further, it is far from clear that there was any real or meaningful disagreement as to the scope of the tests.  True, plaintiff’s opposition states that there is no independent verification that plaintiff cancelled the IME.  But defense counsel so stated and plaintiff, notably, has not disputed it by way of declaration.

The court is left with the view that plaintiff is not appearing for the IME because the plaintiff feels that she does not need to do so.  Plaintiff is wrong.  The IME is appropriate given the injuries she is claiming to have suffered.  The scope of the examination was reasonably disclosed.  If the court’s prior order was wrong, then plaintiff’s remedy was to seek writ review; it was not to ignore the order. 

The court is at a loss as to what to do.  Terminating sanctions are harsh, but the court needs to have some reason to believe that plaintiff will obey court orders and participate properly in the case if she is allowed to go forward.  The only two absolute prerequisites to a termination order are (1) a failure to comply with an order (2) that was willful.  (Valbona v. Springer (1996) 43 Cal.App.4th 1525.)  Both appear to have been met here.  Even so, such a decision ought not be made lightly.  Often there is a history of abuse and the inference of willfulness is inescapable.   And the court must consider whether some lesser sanction would be more appropriate.  Only as a matter of last resort should the court throw a case out of court for a discovery failure, although where necessary such an action is appropriate.  (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690.)

Applying that test here, the court might well be left with no choice but to impose terminating sanctions.  Plaintiff did not comply with the court’s order.  It is hard to see any good faith justification therefor.  And now that plaintiff’s counsel is withdrawing, it is might be that nothing short of terminating sanctions will curb plaintiff’s behavior.  That said, the court will entertain any reasonable alternative that will allow the IME to go forward and allow defendant to prepare for trial adequately.  It could be that the answer involves moving the trial date or it could be something else.  The court might consider an issue sanction, or the court might consider an evidentiary sanction barring plaintiff from producing any evidence from anyone other than herself concerning her condition as it would relate to the examination that did not go forward (which, frankly, is where the court is leaning).  The fact is that the court finds no reasonable excuse for plaintiff’s behavior here.  The court also believes that monetary sanctions are appropriate as prayed.  They are imposed against plaintiff only.

Turning to the motion to be relieved, the court is inclined to GRANT the motion.  Counsel has stated that he can no longer represent plaintiff.  Although he has not detailed the reasons therefor, he has cited to the appropriate statutes.  Under those circumstances, the court cannot force counsel to continue in the case.  The court did want counsel to appear at this hearing, since terminating sanctions are on the table and also because plaintiff objected to the request to withdraw.

If the withdrawal is allowed and the case is not terminated, plaintiff is advised to look carefully at the court’s final status conference rules and trial rules, which can be found on the website.  The rules are fairly detailed and they require a lot of work.  The penalties for non-compliance are significant.  There is no guarantee that the case will be continued while plaintiff attempts to find new counsel or even if she does find new counsel, although the court is not prejudging the outcome of any proper request.