Judge: Michael Shultz, Case: 23CMCV00250, Date: 2024-10-15 Tentative Ruling
Case Number: 23CMCV00250 Hearing Date: October 15, 2024 Dept: A
23CMCV00250
Veronica Alejandra Segura v. Walmart, Inc.
[TENTATIVE] ORDER GRANTING
I.
BACKGROUND
This is a
premises liability action arising from injuries Plaintiff allegedly sustained
after falling at Defendant’s store. Plaintiff requests an order compelling
Defendant to produce its expert’s medical report. Plaintiff served the motion
on defense counsel for the hearing set for July 25, 2024. The court served
notice on all counsel that the hearing was continued to October 15, 2024.
Plaintiff argues
that Defendant’s expert, Russell W. Nelson, M.D., prepared a report regarding
his examination of Plaintiff, however the report did not provide the
information required. The report is vague and incomplete and prevents
Plaintiff’s meaningful cross-examination of Dr. Nelson.
In opposition,
Defendant argues that Plaintiff has not met and conferred in good faith about
the reports at issue. Dr. Nelson prepared a detailed report. Dr. Nelson did not
include Plaintiff’s most recent back surgery in the report because Defendant
was not aware of it and did not possess the records regarding the procedure.
Defendant has
since provided the discovery regarding the surgery to Dr. Nelson once the
Plaintiff’s medical records were received. Plaintiff imposed an arbitrary
deadline for Defendant to produce a complete report. Dr. Nelson issued a
supplemental report on June 28, 2024, incorporating previous findings and
review of the newly discovered documents, which renders Plaintiff’s motion
moot.
In reply,
Plaintiff argues that Plaintiff was forced to file the motion because on June
28, 2024, Defendant insisted that the report was code compliant. Plaintiff was
required to file the motion by the deadline of July 1, 2024. Defendant provided
the supplemental report on July 2, 2024, which Plaintiff acknowledges is code
compliant. (Reply, 2:18-19.) Plaintiff requests imposition of sanctions.
Plaintiff is
entitled to a detailed written report setting out the history, examinations,
findings, "including the results of all tests made, diagnoses, prognoses,
and conclusions of the examiner." (Code
Civ. Proc., § 2032.610.) Defendant acknowledges the report lacked required
information because their expert lacked the medical records concerning the back
surgery. (Mallinson decl., ¶ 14.)
Despite
acknowledging that the report was incomplete given the missing surgical records,
Defendant refused to provide Plaintiff a
reciprocal agreement to extend Plaintiff’s time to file this motion.
Propounding discovery to determine why Plaintiff believed the report to be deficient
was unnecessary; the issue was clear given the parties’ meet and confer
efforts. (Id. Ex.
E, .pdf p. 59).
That Plaintiff
did not respond to prior discovery propounded by Defendant was irrelevant to
Defendant’s statutory duty to provide a complete and timely report. Defendant
would not allow Plaintiff an extended deadline to file this motion until
Plaintiff complied with Defendant’s demands on a separate issue. (Id.)
As Plaintiff
acknowledges that the supplemental report complies with statute, an order
compelling compliance is no longer necessary. However, using a discovery method
in a manner that causes undue burden and expense and opposing this motion
without substantial justification are abuses of the discovery process for which
monetary sanctions are warranted. (Code
Civ. Proc., §§ 2023.010; 2032.620.)
The court finds
that a reduced fee of $395 per hour is reasonable for this discovery motion. Accordingly,
sanctions of $2,627.50 ($395 per hour x 6.5 hours to prepare the motion and
reply, to appear, and a $60 filing fee) are imposed against Defendant and
counsel Lisa Mallinson, jointly and severally, payable to Plaintiff within 10
days.