Judge Michael E. Whitaker, Case Number: 22SMCV02765, Date: 2024-01-17 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22SMCV02765, Date: 2024-01-17 Tentative Ruling

Plaintiff Anita Pourshalimy (“Plaintiff”) seeks a protective order preventing a non-party to the action, Markel Insurance Company (“Markel”), which is a respondent in an arbitration proceeding pertaining to the same motor vehicle incident, “from conducting additional Defense Medical Examinations without leave of Court, as additional Defense Medical Examinations beyond the eight that have been conducted to date and/or a second Mental Defense Examination would be harassing and oppressive to Plaintiff.” Plaintiff also seeks monetary sanctions.

The proof of service for the Motion indicates that Markel was served electronically by email. However, Markel is a non-party to the action which has not yet appeared in or made any filing in this action. Moreover, there is no consent to electronic service on record with the Court. Therefore, service of the Motion on Markel was not proper.

Code of Civil Procedure section 1005, subdivision (b) provides, “All papers opposing a motion […] shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” The court has discretion whether to consider late-filed papers. (California Rules of Court, rule 3.1300(d).)

Because the Motion was not properly served on Markel, the Court exercises its discretion and considers Markel’s untimely opposition.

The California Arbitration Act grants arbitrators authority of discovery in arbitration proceedings. (McConnell v. Advantest America, Inc. (2023) 92 Cal.App.5^th 596, 608.)

Here, the underlying dispute between Plaintiff and Markel is currently in arbitration proceedings, and the Court notes that the arbitration was not ordered as part of the underlying action. Moreover, Markel is not a party to this action. As such, Plaintiff’s request, which seeks a protective order from discovery arising from the arbitration proceeding, is not justiciable before this Court and should be brought before the arbitrator.[1]

Plaintiff shall provide notice of the Court’s order 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	207
HEARING DATE	January 17, 2024
CASE NUMBER	22SMCV02765
MOTION	Motion for a Protective Order
MOVING PARTY	Plaintiff Anita Pourshalimy
OPPOSING PARTY	none