I. BACKGROUND  

Plaintiff Uri Perez (“Plaintiff”) filed this action against defendant George Anderson and Does 1 to 50 for damages arising from a motor vehicle collision. Plaintiff filed an amendment to complaint naming Karo Vartanian as Doe 1.  

George Anderson and Karo Vartanian (“Defendants”) now move for evidentiary and issue sanctions against Plaintiff for failing to appear for neurological examination in violation of the Court’s October 26, 2023 Order. On October 26, 2023, the Court ordered Plaintiff to appear for his neurological examination with Edwin C. Amos, M.D. (“Dr. Amos”) at 2021 Santa Monica Blvd., Suite 525E, Santa Monica, CA 90404 on November 14, 2023 at 2:00 p.m. (Min. Order, Oct. 26, 2023.) 

Plaintiff opposes the motion, and Defendants filed a reply. 

Defendants submit that Plaintiff was ordered to appear for his examination on November 14, 2023, but that Plaintiff’s counsel stated Plaintiff could not appear on this date. Therefore, the parties stipulated to continue trial so that Plaintiff could appear for his examination on February 1, 20224 instead, with discovery to remain closed except for the examination. The Notice was served, and Plaintiff confirmed the examination. 

However, after Plaintiff did not appear for his examination, Defendants offered to continue the trial date and to reschedule for Dr. Amos’ next available appointment on the condition that Plaintiff paid the $750 neurological examination fee for missing the appointment. Defendants argue Plaintiff has failed to pay any of the previously ordered discovery sanctions to date. Defendants therefore seek an order to preclude Plaintiff from claiming and introducing any evidence of his neurological injuries or damages at trial.   

Plaintiff argues he did appear for his examination on February 1, 2024, but that due to a calendaring error, Plaintiff and his counsel appeared at 1:00 p.m. instead of 10:00 a.m. Plaintiff avers he is ready and willing to submit to his neurological examination at any time. Plaintiff requests the imposition of less severe sanctions, such as monetary sanctions. Further, Plaintiff contends Defendants are engaging in gamesmanship, because the stipulation with the statement that discovery remain closed was placed only in the “order” section, and Plaintiff never agreed to the discovery deadline. Further, Plaintiff argues Defendants did not respond to Plaintiff’s discovery on the grounds that discovery was closed, yet is having it both ways by filing this motion.   

Defendants reiterate the arguments in their moving paper, and contend the only reason for the motion for sanctions is because of the refusal to pay the $750 to compensate Dr. Amos for the missed examination.  

II. MOTION FOR EVIDENTARY/ISSUE SANCTIONS 

“[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.”  (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.) Considering Plaintiff’s willingness to appear for his examination, the Court finds issue and evidentiary sanctions not warranted at this time. 

In terms of timeliness of the motion, the parties stipulated to continue the trial date for the purposes of Plaintiff attending his neurological examination on February 1, 2024, with discovery cut-off dates to remain tied to the current trial date. (Stip. & Order, Nov. 1, 2023.) It makes little sense for the parties to stipulate to leaving discovery open for the examination, but for any discovery motions concerning issues with that examination to remain closed. The Court will not consider Plaintiff’s counsel’s contention that he did not fully read the stipulation in full prior to executing it.   

Accordingly, the motion seeking issue and evidentiary sanctions is denied without prejudice. However, monetary sanctions are warranted for Plaintiff’s failure to appear in a substantially timely manner to his examination, such that the examination could not proceed and further delaying trial in this matter.  

III. MONETARY SANCTIONS 

A court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (CCP §2023.030(a).)  

Defendants are awarded the $750 fee for Plaintiff’s failure to timely appear for his examination with Dr. Amos.  

Sanctions are imposed against Plaintiff and Plaintiff’s attorney of record, jointly and severally.  Plaintiff and/or Plaintiff’s counsel are ordered to pay sanctions to Defendants, by and through counsel of record, in the total amount of $750, within twenty (20) days. 

IV. CONCLUSION  

Defendants motion for issue and evidentiary sanctions is DENIED without prejudice. However, the Court GRANTS an award of monetary sanctions as the lesser sanction at this time.  

The parties are ordered to meet and confer on a mutually agreeable date for Plaintiff’s examination with Dr. Amos to be completed within the next thirty (30) days. To accommodate the examination, the May 14, 2024 trial date is continued to ______________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse. The April 30, 2024 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31.  

In line with the parties’ prior stipulation, all discovery related dates and discovery motion cut-off dates remain closed except for Plaintiff’s neurological examination with Dr. Amos, and any motions in direct relation to this examination. Plaintiff is on notice that failure to appear for and complete her next mutually scheduled examination with Dr. Amos will result in the imposition of issue and/or evidentiary sanctions.  

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 17th day of April 2024