Judge: Michael E. Whitaker, Case: 20STCV26551, Date: 2023-05-18 Tentative Ruling

Case Number: 20STCV26551    Hearing Date: May 18, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

NOTE:  2 TENTATIVE RULINGS BELOW 

TENTATIVE RULING - NO. 1

MOTION

            Defendant City of Los Angeles (Defendant) moves to compel Plaintiff Joseph Schettino (Plaintiff) to submit to a physical examination with Nicholas Rose, M.D., who is an orthopedic upper extremity surgeon.  Plaintiff has not filed an opposition. 

ANALYSIS

When the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may obtain a physical examination of the plaintiff.  (Code Civ. Proc., §§ 2032.020, 2032.220.)  A defendant is permitted to one physical examination of the plaintiff in a personal injury action on demand. (Code Civ. Proc., § 2032.220, subd. (a).) 

If a defendant seeks to obtain an additional physical examination of a plaintiff, the defendant must obtain leave of court. (Code Civ. Proc., § 2032.310, subd. (a).)  A motion to compel an additional physical examination must “specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination . . . ,” and must include a meet and confer declaration. (Code Civ. Proc., § 2032.310, subd. (b).)  Additionally, the defendant must make a showing of “good cause” to obtain the second physical examination.  (Code Civ. Proc., § 2032.320, subd. (a).)  Under the Discovery Act, there is no limit on the number of mental or physical examinations, provided that a showing of good cause is made to justify more than one mental or physical examination of a party. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) The Shapira court also noted that “multiple examinations should not be ordered routinely; the good cause requirement will check the potential harassment of plaintiffs by repetitive examinations,” and “multiple examinations by medical specialists in different fields” may be necessary based upon a plaintiff's claimed injuries.  (Ibid.)

            The Court finds however that Defendant has failed to state the manner, conditions, and scope of the assessment as required under Code of Civil Procedure section 2032.310, subdivision (b).  As such, Defendant’s motion to compel an additional physical examination of Plaintiff is procedurally defective. 

CONCLUSION AND ORDER

            Therefore, the Court denies Defendant’s motion to compel Plaintiff’s appearance at an additional physical examination.

Defendant shall provide notice of this order and file a proof of service of such.

 PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING - NO. 2

MOTION

Plaintiff Joseph Schettino (Plaintiff) sued Defendant City of Los Angeles (Defendant) based on injuries Plaintiff alleges he sustained in an electric scooter accident.  Defendant moves to continue trial which is currently set for June 16, 2023, to a date 60 to 90 days after the possible mediation in April of 2024, or to a date after March of 2024 that accommodates the Court’s trial calendar, with all pre-trial motion and discovery cutoffs to be based on the new trial date.  Plaintiff opposes the motion.  Defendant replies.

ANALYSIS

 “Continuances are granted only on an affirmative showing of good cause requiring a continuance.”  (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)  A trial court has broad discretion in considering a request for a trial continuance.  (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)  California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.  Whether the parties have stipulated to the postponement is a relevant factor for consideration.  (See Code Civ. Proc., § 595.2, but see Lorraine v. McComb (1934) 220 Cal. 753, 756-757 [finding a stipulation to be merely “directory”].)  

Here, Defendant seeks a trial continuance to permit Defendant’s new counsel to complete remaining discovery and properly prepare for trial.  According to counsel for Defendant, Andrew J. Ulwelling (Counsel), Counsel substituted in as new defense counsel on March 14, 2023 and began to prepare for a private mediation between the parties which was scheduled for April 17, 2023.  (Declaration of Andrew J. Ulwelling, ¶ 4.)  Based on Counsel’s initial review of the case file prepared by prior defense counsel, Counsel evaluated Plaintiff’s medical expenses to be approximately $28,617.75.  (Declaration of Andrew J. Ulwelling, ¶ 4.)  However, Plaintiff’s mediation brief alleged a total of $276,027.03 in medical expenses and made an opening settlement demand of $3,750,000.  (Declaration of Andrew J. Ulwelling, ¶ 5.)  The meditation brief stated that Plaintiff has had two previous surgeries, one on his elbow, and the other on his right knee.  (Declaration of Andrew J. Ulwelling, ¶ 6.)  Counsel states on March 31, 2023, he canceled the April 17, 2023 mediation in order to conduct necessary investigation and discovery because prior defense counsel had not yet had Plaintiff examined by a defense retained physician.  (Declaration of Andrew J. Ulwelling, ¶¶ 8, 10.) 

In addition, Counsel states that a physical examination of Plaintiff with Scott Forman, M.D. is scheduled for July 3, 2023.  (Declaration of Andrew J. Ulwelling, ¶ 11.)  Counsel further notes that he has filed a motion to compel an additional physical examination of Plaintiff.  (Declaration of Andrew J. Ulwelling, ¶ 12.)   According to the Plaintiff’s life care plan expert, Plaintiff will need three surgeries in the future: a partial knee replacement, total knee replacement, and right shoulder scope and decompression.  (Declaration of Andrew J. Ulwelling, ¶ 7.)  Counsel concludes that there is good cause to continue the trial date because Defendant has a legitimate interest to discover the extent of Plaintiff’s alleged orthopedic injuries in this case and further presumes that a possible mediation will take place in April of 2024.  (Declaration of Andrew J. Ulwelling, ¶¶ 14, 18.) 

In opposition, Plaintiff argues Defendant has failed to show good cause for a continuance.  Plaintiff contends that Defendant does not sufficiently explain what discovery prior counsel failed to conduct and the reason for their failure.  Plaintiff indicates that he previously provided his medical records to Defendant, and Defendant has subpoenaed and obtained Plaintiff’s entire medical record.  Further, counsel for Plaintiff has agreed to make Plaintiff available for a physical examination even on short notice before the June 16, 2023 trial date, but counsel for Defendant has not provided dates for a physical examination before June 16, 2023. (See Declaration of Nina Sargsyan, ¶ 9.)  Plaintiff notes that the trial has already been continued two times.  Finally Plaintiff argues that he will likely incur additional costs and fees if the trial is continued. 

In reply, Counsel again highlights that the previous counsel’s file on this matter only included plaintiff’s medical expenses totaling $28,617.75, and further prior counsel failed to schedule any kind of independent medical examination for Plaintiff.  Counsel further explains that Defendant’s medical expert did not have any earlier availability for Plaintiff’s independent medical examination than July 3, 2023. 

The Court finds that substitution of counsel close to a scheduled trial should not  routinely give rise to a trial continuance, especially a trial continuance request of over one year.  Further, the Court finds that a prior counsel’s failure to complete discovery, including demanding the physical examination of Plaintiff, does not warrant a trial continuance, absent sufficient justification, including but not limited to a party (a plaintiff) thwarting the diligent efforts of another party (a defendant) to complete essential discovery, which is absent herein.  (See Declaration of Andrew J. Ulwelling, ¶¶ 1-18.)  Hence, any remedy for a counsel who is or was dilatory in completing discovery should not unduly prejudice an opposing party such as Plaintiff. 

CONCLUSION AND ORDER

The Court agrees with Plaintiff and determines that Defendant has not shown good cause to continue the trial and reopen discovery.  Therefore, the Court denies Defendant’s motion to continue trial.   Defendant shall provide notice of the Court’s ruling and file a proof of service of such.