Judge Michael E. Whitaker, Case 21STCV07859 2023-04-17 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV07859, Date: 2023-04-17 Tentative Ruling

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.

Defendant Jasmyne Patrice Gholar (Defendant) moves to compel Plaintiff Illya Kode (Plaintiff) to submit to a physical examination (IME) with Jeffrey Korcheck, M.D. (Korcheck). Defendant further requests that the Court extend the discovery cut-off dates, if the motion to compel IME is granted, to allow the completion of such defense medical examination. Defendant requests monetary sanctions in connection with the motion. Plaintiff has not filed an opposition.

Preliminarily, the Court finds Defendant’s motion to compel Plaintiff’s IME to be premature. Under Code of Civil Procedure section 2032.240, a defendant “may move for an order compelling response and compliance with a demand for a physical examination.” However, Defendant has failed to establish that she has a served a demand for physical examination on Plaintiff to which Plaintiff has not complied with. Moreover, Defendant concedes that she has not served “a regularly noticed amended demand for an IME” because Plaintiff’s whereabouts are apparently unknown. (Declaration of Tiffany C. Fowler, ¶ 8.)

Accordingly, the Court denies Defendant’s motion as not justiciable. [1] Based on the Court’s denial of Defendant’s motion to compel IME, the Court does need to reach Defendant’s request to extend the discovery cut offs to accommodate completion of Plaintiff’s IME, or the request for monetary sanctions.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.

[1] “The concept of justiciability involves the intertwined criteria of ripeness and standing. Standing derives from the principle that every action must be prosecuted in the name of the real party in interest. A party lacks standing if it does not have an actual and substantial interest in, or would not be benefited or harmed by, the ultimate outcome of an action. Standing is a function not just of a party's stake in a case, but the degree of vigor or intensity with which the presents its arguments. Ripeness refers to the requirements of a current controversy. According to the Supreme Court, an action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law will not be entertained. A controversy becomes ripe once it reaches, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59 [cleaned up].)

DEPARTMENT	32
HEARING DATE	April 17, 2023
CASE NUMBER	21STCV07859
MOTION	Motion to Compel Independent Medical Examination & Reopen Discovery; Request for Monetary Sanctions
MOVING PARTY	Defendant Jasmyne Patrice Gholar
OPPOSING PARTY	None