Judge: Michael E. Whitaker, Case: 21STCV07729, Date: 2023-01-05 Tentative Ruling

Case Number: 21STCV07729    Hearing Date: January 5, 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. 

TENTATIVE RULING

MOTION

Plaintiff Richard David Phillippi (Plaintiff) moves to compel Defendants Lane 4 Backstroker LP, a California Limited Partnership, Frank Wattles, and Marion Wattles (collectively, Defendants) to produce the report of Plaintiff’s defense medical examination report by Tony Strickland, M.D. (Strickland).  Plaintiff seeks monetary sanctions.  Defendants oppose the motion.  Plaintiff replies. 

ANALYSIS

Pursuant to Code of Civil Procedure section 2032.610, subdivision (a), “[i]f a party submits to, or produces another for, a physical or mental examination in compliance with a demand under Article 2 (commencing with Section 2032.210), an order of court under Article 3 (commencing with Section 2032.310), or an agreement under Section 2016.030, that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party: (1) A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.  (2) A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.”  (Code Civ. Proc., § 2032.610, subd. (a).)  “If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.”  (Code Civ. Proc., § 2032.610, subd. (b).)

Code of Civil Procedure section 2032.620 provides, “[i]f the party at whose instance an examination was made fails to make a timely delivery of the reports demanded under Section 2032.610, the demanding party may move for an order compelling their delivery.  This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.620, subd. (a).) 

Here, Plaintiff served his response to Defendants’ demand for defense medical examination and demand that the resulting report by Strickland be produced within 30 days after the examination.  (Declaration of Andrea M. Solis, ¶ 3; Exhibit 2.)  Strickland conducted Plaintiff’s examination on July 7, 2022.  (Declaration of Andrea M. Solis, ¶ 4.)  As of the filing date of the motion, Defendants have not produced Strickland’s report concerning Plaintiff’s July 7, 2022 examination.  Accordingly, the Court concludes Defendants have not timely produced Strickland’s report concerning Plaintiff’s examination. 

In opposition, Defendants argue that Plaintiff’s motion is moot because on November 8, 2022, Counsel for Defendants forwarded Strickland’s report via electronic communication and a link to Plaintiff’s counsel.  (Declaration of Harry A. Safarian, ¶ 8, Exhibit B.)  Plaintiff filed a reply confirming receipt of Strickland’s report.  Accordingly, the Court finds Plaintiff’s motion to compel the defense medical examination report to be moot.

Plaintiff requests monetary sanctions in connection with the motion.  Under Code of Civil Procedure section 2032.620, “[t]he 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 delivery of medical reports under this section, 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.”  (Code Civ. Proc., § 2032.620, subd. (b).) 

Although the Court finds Plaintiff’s motion in part to be moot, the question of sanctions nevertheless remains before the Court. “[P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].”  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407.)  Even if the untimely response “does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses . . . the trial court retains the authority to hear the motion.”  (Id. at pp. 408-409.)  This rule gives “an important incentive for parties to respond to discovery in a timely fashion.”  (Id. at p. 408.)  If “the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions,” the trial court may “deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.”  (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a) [“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed”].)

In opposition, Defendants argue that they acted with substantial justification in providing the defense medical examination report to Plaintiff several months late based on the fact that the defense medical examination was not available/ready until November 7, 2022.  (See Declaration Harry A. Safarian, ¶¶ 5-7.)  However, Defendants fail to explain why after receipt of Plaintiff’s initial inquiries in August about the defense medical examination report, they did not investigate the status of said report until the instant motion was served on them, and did not notify Plaintiff about the status of the report until November. 

Accordingly, the Court finds Defendants did not act with substantial justification in failing to investigate the status of the medical examination report, nor notify Plaintiff of the status of said report in a timely fashion.  As such, the Court will impose monetary sanctions against Defendants in the amount of $561.65, which represents two hours of attorney time to prepare the moving papers, and attend the hearing, at $250 per hour, plus the filing fee of $61.65.

CONCLUSION AND ORDER

Therefore, the Court denies in part Plaintiff’s motion to compel Defendants’ production of Strickland’s report of Plaintiff’s defense medical examination as moot.

Further, the Court grants in part Plaintiff’s motion to compel regarding the request for monetary sanctions and orders Defendants to pay monetary sanctions in the amount of $561.65 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders. 

Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.