TENTATIVE RULING

Calendar: 5

Date: 7/19/2024

Case No: 23 GDCV02285 Trial Date:  None Set 

Case Name: Petrosyan v. Trader Joe’s Company

MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION

Moving Party: Defendant Trader Joe’s Company    

Responding Party: Plaintiff Lyudmila Petrosyan    

REQUEST TO ORDER EXAM OF:

Plaintiff Lyudmila Petrosyan   

FACTUAL BACKGROUND:

ANALYSIS:

Defendant Trader Joe’s Company seeks to compel plaintiff Lyudmila Petrosyan to comply with a Demand for IME that was originally set for April 16, 2024, but had to be rescheduled to June 12, 2024. 

The opposition indicates that the motion is moot because plaintiff’s independent examination took place as scheduled on June 12, 2024. 

The motion accordingly is denied with respect to the request for an order compelling compliance with the Demand for IME, as the motion is moot.  

This posture leaves the issue of monetary sanctions, which are sought by both sides. 

Defendant seeks sanctions under CCP section 2032.250 (b):

“The 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 response and compliance with a demand for a physical examination, 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.” 

The burden is on the party subject to sanctions to show substantial justification or injustice.  Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436. 

Defendant also seeks sanctions under CCP § 2023.010, pursuant to which misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.”   Where there has been misuse of the discovery process, under Section 2023.030(a), the 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.”  

Under CRC 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files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Defendant also indicates that plaintiff’s verified discovery responses to Form Interrogatories Nos. 2.9 and 2.10 confirmed that she can read, write and speak English with ease.  [Kim Decl., Ex. C]. 

However, one day before the scheduled IME, on April 15, 2024, plaintiff notified defendant via email at 12:23 pm that plaintiff would require an Eastern Armenian interpreter at the IME on April 16, 2024.  [Kim Decl., Ex. D].   Though given short notice, defendant made available an Eastern Armenian interpreter via Zoom for plaintiff’s IME.  [Li Decl., para. 4, 5].  Defendant argues that plaintiff was instructed by her counsel not to attend the  examination for lack of an in-person interpreter, even though plaintiff had traveled from Los Angeles to the doctor’s office in Newport Beach to attend the IME.  [Li Decl., paras. 6, 7]. 

Defendant indicates that consequently, the doctor’s office charged a $600 no show fee, which plaintiff has refused to pay.  [Kim Decl., Exs. E, G].  

Defendant also seeks $660 in sanctions for the cost of bringing the motion (3 hours at $200 per hour, plus $60 filing fee). 

Plaintiff in opposition argues that defendant’s statement that plaintiff did not appear for her IME is a misrepresentation of facts.  Plaintiff argues that defendant was aware that although plaintiff represented in her discovery responses that she knows English, plaintiff prefers Armenian, and needed an interpreter for her deposition, but that knowing that plaintiff needed an interpreter, did not hire one for the IME.   [Ex. C].  Plaintiff indicates that plaintiff’s counsel was sure that defendant’s counsel would request an interpreter, but just to be safe, had her legal assistant email defense counsel to make sure the interpreter was requested.  

Plaintiff argues that plaintiff appeared at her IME, with the nurse hired by plaintiff to be present at the IME, and that plaintiff’s counsel received a call that the interpreter was appearing via Zoom.   Plaintiff argues that given that many mistakes happen during Zoom translation, and it was a physical examination of plaintiff, with plaintiff, for example, being asked to point out body parts to the doctor, plaintiff’s counsel reasonably required an interpreter in person.  Defendant’s counsel asked if plaintiff would wait until they could find an interpreter willing to drive that far, and plaintiff’s counsel agreed, so plaintiff waited at the doctor’s office for almost an hour.  Plaintiff argues that although she waited patiently to get an interpreter to go forward with the IME, defense counsel was not able to get one.  It would have been helpful if this information had been included in a declaration, as the declaration submitted does not mention any of these facts, and the circumstances do not seem to be clearly reflected in the emails attached to the opposition, although there is an email from counsel for defendant which states: 

“Even given this short notice, Defendant produced an interpreter via Zoom that was ready to proceed and assist on April 16, 2024. We discussed your reasons for preferring an in-person interpreter, where Defendant will happily provide an in-person interpreter for the rescheduled IME on June 12, 2024. At the same time, Defendant should not have to pay the cancellation fee for the April 16, 2024 IME because Plaintiff requested an interpreter less than 24 hours before the examination.” 

[Darbinyan Decl., para. 3, Ex. H].  

It appears that at that point, counsel for defendant found that the arguments made by plaintiff’s counsel why an in-person interpreter was necessary to be reasonable. 

The opposition also argues that defendant has failed to address the fact that plaintiff served timely objections to the Notice of IME objecting to any responsibility for a cancellation fee.  Specifically, Plaintiff Lyudmila Petrosyan’s Objection and Response to Defendant’s Demand for Physical Examination indicates:

“Plaintiff will comply with Defendants’ demand under the following further conditions…  17. Neither Plaintiff or counsel for Plaintiff will be responsible for any cancellation fees, if any, for rescheduling and/or cancelling any examinations set for by the noticing party as no such provision is authorized under the Code of Civil Procedure and is thus improper as a matter of law.” 

[Darbinyan Decl., para. 3, Ex. D]. 

This objection is not discussed either in the moving papers or the separate statement, when it is clearly highly relevant to the instant dispute.   

This result is an unfortunate situation, as no formal request for an interpreter was made, and accommodations could not be made at the last minute, but it also appears that plaintiff did not deliberately fail to appear at the noticed IME, and it does not appear unreasonable to have required an in person interpreter, which has since been provided in concession to the preferability for that situation.   The deposition has now been conducted.   Again, defendant has failed to address the objection made by plaintiff concerning the cancellation fee, either in the motion or in the separate statement.  

Plaintiff in the opposition seeks sanctions for the cost of having the nurse appear twice ($700), as well as for the expense of opposing this motion in the sum of $1,050 (2 hours preparing opposition, 1 hour preparing for and appearing at hearing @ $350 per hour). [Darbinyan Decl., paras. 3, 4, Ex. G].  The argument is basically that defendant has unsuccessfully brought this motion, having failed to show how plaintiff failed to appear for her IME when she was at the doctor’s office for one hour waiting, with the nurse, for an interpreter to arrive.  The declaration in support of the motion does not refer to or confirm these facts.  [See Darbinyan Decl.]. 

Hence, neither side has entirely prevailed on this motion or provided sufficient argument or evidence to the court justifying any shifting of the expenses in connection with this matter. 

No sanctions are awarded.  

RULING:

Defendant Trader Joe’s Company’s Motion to Compel Compliance of is MOOT in light of the representation in the moving papers that the IME had been rescheduled and the confirmation in the opposition that the IME was conducted as rescheduled prior to the hearing on this motion.   

Monetary sanctions, including cancellation fee, requested by moving party are DENIED. 

Monetary sanctions requested in the opposition are DENIED. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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