TENTATIVE RULING

 

Calendar:    5

Date:          8/19/2022 

Case No: BC 648515 Trial Date: February 6, 2023 

Case Name: Ellensohn v. City of Burbank, et al.

MOTION FOR MONETARY SANCTIONS 

Moving Party:            Defendant/Cross-Defendant HHS Construction, Inc.      

Responding Party: Plaintiff Mark Ellensohn     

RELIEF REQUESTED:

Monetary Sanctions against plaintiff and counsel in the amount of $3,826.15 

FACTUAL AND PROCEDURAL BACKGROUND: 

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below. 

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, an explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road.  Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light.  On June 1, 2016, plaintiff underwent a surgical procedure on his left eye, and plaintiff’s ophthalmologist advised him that, in his opinion, the electrical explosion during the collision caused plaintiff’s eye damage.   Plaintiff was further advised that he had sustained permanent vision loss and permanent damage.  Plaintiff alleges that as a result of the intense bright explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish, diminished sense of direction, loss of earnings, loss of future earnings, and loss of earning capacity. 

ANALYSIS:

Defendant HHS seeks by this motion to recover monetary sanctions for the expenses defendant incurred with respect to an Independent Medical Psychological Examination (“IME”) which plaintiff had been ordered to attend, but which was cancelled when plaintiff attempted to record the examination on plaintiff’s cell phone.  

The moving papers indicate that on March 11, 2022, the court heard an ex parte application by defendant/cross-defendant HHS for an order compelling plaintiff to show up at his IME scheduled for March 14, 2022, with Dr. Ted Evans.   The application was granted, and the court signed and filed the order on the ex parte application, which order ordered plaintiff to appear for the IME on March 14, 2022, with Dr. Evans, and further ordered, “that the examination shall take place under the conditions of the IME notice set forth as exhibit 6 to HHS’ Ex Parte Application…” [Hayes Decl., para. 3, Ex. 1, Ex. A].   The IME notice provides:

“Plaintiff shall have the right to record by audio technology the interview portion of the examinations to be conducted, subject to agreement to the conditions set forth below: 

There are to be two separate audio-recordings (both administered by the Plaintiff): 

(1) One recording would contain and be limited to the entire interview (history taking) portions of the examination; and

(2) The second recording would contain and be limited to the orally administered psychological testing. At the conclusion of the exam, Dr. Evans will take possession of that recording (or the recording device if the recording cannot be detached from the recording device) and will provide it directly to plaintiff's expert (who must be a licensed psychologist and therefore bound by the same APA Ethical Guidelines). Dr. Evans will have responsibility for securing and maintaining the original recording. 

The plaintiff will be permitted to receive raw data from any administered tests upon condition that the transmission of the data conforms to ethical requirements between the doctors as follows: 

1. The materials may be used by counsel to prepare and evaluate the case and may be shared with Plaintiff’s mental health experts: 

2. When not in use, the materials must be held by Plaintiff’s counsel is a secure cabinet; 

3. The material may not be disseminated to anyone else, and the use of the material is restricted only for the Mark Ellensohn case; 

4. If the material is disclosed in pleadings, testimony or other documents, such record shall be sealed; 

5. At the conclusion of the case, all such materials shall be returned to the respective examining doctors.”

[Hayes Decl., Ex. 1, A, Ex. 6, Defendant HHS Construction, Inc.’s Demand, Continued Per Agreement, for Independent Psychological Medical Examination of Plaintiff; pp. 3-4, emphasis added].     

There was no objection concerning the conditions set forth in that IME notice at the March 11, 2022 hearing on the part of plaintiff, and defendant has submitted a transcript of the proceedings reflecting that.  [Hayes Decl., para. 4, Ex. 2].  Defendant has also submitted a transcript of a previous hearing conducted in December of 2021 in which plaintiff’s counsel agreed with defendant’s counsel that the IME with Dr. Evans would go forward on January 24, 2022, and the parties had “worked out all of our issues that [plaintiff’s counsel] had with that…” When defendant’s counsel asked, “Is that correct, Barbara?” plaintiff’s counsel responded, “That is correct.”  [Hayes Decl., para 6, Ex. 4, p. 7:21-27]. 

The day before the scheduled examination, March 13, 2022, counsel for plaintiff emailed counsel for defendant asking if plaintiff could record the entire examination on his phone and then send Dr. Evans a copy of the recording, and defendant’s counsel responded that such a plan would not comply with the court order, which required that any recording of the orally administered psychological testing portion of the examination had to be left with Dr. Evans, with no copy to be retained by plaintiff.  [Hayes Decl., paras. 5-8, Ex. 3].

Evidently, plaintiff appeared for his examination on March 14, 2022, completed the written initial inventory without incident, but when Dr. Evans began conducting the oral portion of the examination, beginning with the Word Memory Test, plaintiff took out his cell phone and indicated he would be audio-recording the testing, and that he also intended to take pictures of the actual physical test.  [Hayes Decl., para. 10, Ex. 5, Evans Decl., para. 4].  Dr. Evans explained that plaintiff was free to audio record the interview portions of the examination on his cell phone, but that Dr. Evans could not permit plaintiff to audio record or visually record orally administered neuropsychological tests on his cell phone “due to both ethical and proprietary restrictions.”  [Evans Decl., para. 5].  Dr. Evans states, “I explained for example that according to the APA Ethical Guidelines, I was required to ‘maintain test security.’ (9.11).  I further expressed my impression there was a court order affirming these recording restrictions.” [Evans Decl., para. 5].   

Plaintiff told Dr. Evans he had been instructed by his attorney to record all of the testing, and that he would not proceed unless he could audio record the entire testing on his cell phone.  [Evans Decl., para. 6].  Dr. Evans suggested they take a break to allow plaintiff to contact his attorney, and after plaintiff had what appeared to be an extended cell phone conversation with his attorney, plaintiff informed Dr. Evans that because Dr. Evans would not permit him to audio record the neuropsychological testing on his cell phone, his attorney advised him not to proceed with the evaluation.  [Evans Decl., para. 7].  Plaintiff expressed his regret, and, after gathering his belongings, left the office.  [Evans Decl., para. 7]. 

Defendant argues that plaintiff accordingly failed to comply with the court’s order, as the procedure that the parties agreed to, and was ordered by the court, and to which plaintiff’s attorney never previously objected, was that audio recording could be conducted, but that as to the testing portion, in a manner so that Dr. Evans could retain sole custody of the recording, for direct transmission to plaintiff’s expert.  This requirement would not be practically possible if the recording were made on plaintiff’s cell phone, which plaintiff would presumably be taking with him after the examination.   

 The moving papers also indicate that on March 17, 2022, the court heard an ex parte application brought by defendant/cross-defendant HHS for an order that the IME go forward, and that plaintiff be sanctioned for not completing the IME on March 14, 2022.  [Hayes Decl., para. 11].  The minute order from the hearing shows that the ex parte application was denied without 

prejudice, the minute order stating:

“Defendant/Cross-Defendant HHS Construction Inc.'s ex parte application is denied without prejudice to seek sanctions relating to the aborted IME on 03/14/2022. Further proceedings on the matter are continued to 03/28/2022 at 11:00 AM.

Both Defendant and Plaintiff may put forth noticed motions pursuant to Code of Civil Procedure sections 2035.510(f) and 2023.010(d), (e) and/or (g)for issues related to the 03/14/2022 IME aborted examination.”

A copy of the minute order is in the court file and also submitted with the reply. [Hayes Decl., para. 3, Ex. A]. 

On June 10, 2022, the court heard a noticed motion brought by defendant HHS seeking a protective order requiring that at conclusion of plaintiff’s IME examination, Dr. Evans take custody of any recording plaintiff had made of the orally administered psychological testing and provide the recording directly to plaintiff’s expert upon request of such expert.  Defendant also requested an order confirming that all provisions contained in the previous court order regarding the IME Notice would be enforced, with minor changes reflected in an Amended IME Notice.  The motion was granted in part, the court ordering in some detail that at the IME plaintiff was “required to follow the ordered protocol for audio recording of the separate parts of the examination,” as set forth in the IME notice, and provide the recording or recording device of the orally administered psychological testing to Dr. Evans.  [Minute Order 6/10/22, p. 19 of 21].   

The IME has evidently not yet been conducted.

Defendant HHS now brings this noticed motion to recover the expenses it incurred in connection with the March 13, 2022 IME which did not proceed as ordered. 

 Defendant seeks relief under CCP sections 2023.010 and 2023.030.

CCP § 2023.010 defines misuse of the discovery process to include “(g) Disobeying a court order to provide discovery.”   Where there has been such conduct, under CCP 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....If a monetary sanction is authorized” by the statute,  “the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP §2023.030(a).  

 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 argues that plaintiff’s counsel knowingly violated this court’s order, when counsel was aware of the importance to defendant of having the mental examination conducted, and the efforts and expense undertaken by defendant to make the examination happen.  

Defendant argues that plaintiff violated this court’s order with respect to the conduct of the IME, misusing the discovery process, and should be ordered to pay the reasonable expenses, including attorney’s fees, incurred by defendant as a result of that conduct. 

Defendant indicates that it has incurred $3,826.15 in expenses due to plaintiff’s failure to obey the court order, as follows:

Dr. Evans’ fee for exam = $1,800

Reserving hotel room for plaintiff = $264.50

Preparation of motion (7 hours @ $170/hr) = $1,190

Preparing reply (2 hours @ $170/hr) = $340

Attending hearing (1 hour @ $170/hr) = $170

Cost of filing motion = $61.65

[Hayes Decl., paras. 13-14, Exs. 5, 6].  

Plaintiff in opposition argues that plaintiff complied with the March 11, 2022 order compelling the IME, and that it was defendant’s retained doctor, Dr. Evans, who failed to comply with the IME notice by not following the procedures and order of events as stated in the IME notice, causing confusion to plaintiff and resulting in Dr. Evans’ termination of the exam. 

Plaintiff argues that he actually had a second recording device in his backpack at the time of the IME, in order to make separate recordings, but because Dr. Evans conducted the examination in a different order than the order set forth in the IME notice, and plaintiff had been told that he could record the first portion on his cell phone, plaintiff was understandably confused when told he could not record the examination. 

Plaintiff submits the declaration of counsel, who states:

“3. On Sunday, March 13, the day before the mental examination was to take place, my client asked me questions about audio-recording the examination. The language in the IME notice is/was confusing regarding the requirement of two audio-recording devices. 

4. I emailed Mr. Hayes asking if it would be acceptable for Mark to record the examination on his phone and send it to the doctor upon the conclusion of the examination. Mr. Hayes responded in an email stating, “No.” He then cut and pasted the exact phrase from the IME notice. I explained that Mark had the right to record the examination pursuant to statute. Mr. Hayes disagreed.

5. Thereafter, I instructed Mark to go purchase a separate recording device so that he could record the examination pursuant to the IME notice. Mark informed me, and provided me with the receipt, that he did in fact purchase a recording device, an MP3, on Sunday afternoon before taking the Lyft-ride to Encino. (See Ellensohn Decl). Plaintiff had the separate audio-recording device, unopened, in his backpack while at Dr. Evans’ office for the First Psychological IME.”

[Harper Decl., paras. 3-5].

Plaintiff also submits the declaration of plaintiff, in which he states that the day before the IME he asked counsel about recording the IME, “because the clause in the IME notice was unclear to me,” and that counsel said she would discuss with HHS’s attorney and get back to him.  [Ellensohn Decl., paras. 3, 4].

Plaintiff then indicates he was instructed to and did purchase a recording device to use at the IME:

“5. Shortly thereafter, my attorney called me and told me I had to have two recordings pursuant to the notice if I wanted to record during the IME. She asked me if I had a tape recorder, but I did not. She then instructed me to go purchase a recording device, which I did. Attached hereto as Exhibit A is the receipt for the recording device.”

[Ellensohn Decl., para. 5].

The receipt is attached for a digital voice recorder purchased on March 13, 2022.  [Ellensohn Decl., Ex. A].  

Plaintiff presents his own account of the IME proceedings:

“11. The next morning, my attorney ordered me a Lyft ride from the hotel to the doctor’s office. I arrived early, ahead of schedule. I had the recording device, still in its box, in my backpack with me. 

12. Once the doctor had me come into the room, we began to have initial discussions. I put my phone on the table and said that I was going to audio-record the exam. At that point, the doctor got very agitated and told me that I could not record the exam because it was all copyrighted – this was prior to me recording anything. I told him that it was my understanding that I have a statutory right to record. He said that if I intended to record the exam, he was terminating the exam. He then promptly stated “I am terminating this exam.” 

13. I said “whoa, I’m here to work.” But the doctor terminated the exam, and I went into the waiting room and called my attorney. I believe the doctor was calling HHS’s attorney at that time. 

14. After discussions presumably with HHS counsel, the doctor then told me that the exam is terminated.

15. My attorney told me to hang tight – stay in the waiting room or just outside and see if she could discuss the situation with Phil Hayes. 

16. She called me back a few minutes later and said that Phil Hayes hung up on her. 

17. The doctor never discussed with me the procedure of the recording. My understanding of the notice was that I could record the interview and other parts of the exam (the notice is confusing to me though). This discussion was never had. The doctor simply said that I could not record anything. 

18. The doctor was rude, aggressive, and visibly angry with me. After he terminated the exam, he slammed doors and was visibly shaking. I do not feel comfortable being examined by this doctor. 

19. I left the doctor’s office. I walked to the corner gas station and waited for a while to see if anything was going to be worked out. My attorney then called me and said nothing was resolved and that she ordered me a Lyft ride to pick me up to take me home…

[Ellensohn Decl., paras. 11-19, emphasis added].

Plaintiff does not indicate that he was confused by the order in which Dr. Evans was conducting the examination, or that he did or was told to inform Dr. Evans that he had a separate recording device with him. 

Defendant in reply points out that plaintiff’s counsel had in the email exchange before the IME left the exchange with the position that plaintiff would “be recording the entire examination on his phone.”  [Hayes Decl., Ex. 3, final email from Harper].  Plaintiff’s counsel has also consistently since the IME taken the position that plaintiff was entitled to record the entire examination and retain a copy of the recording for himself, including in opposition to defendant’s previous motion for a protective order.  This recitation is the first time plaintiff’s counsel has indicated in writing to the court that plaintiff was prepared to proceed with two recordings, but was simply confused.  

In any case, the fact remains that even under the scenario presented by plaintiff, Dr. Evans correctly understood his professional responsibilities and that the portion of the examination plaintiff intended to record on his cell phone and take with him could not be recorded and leave the possession of Dr. Evans.  If plaintiff had another recording device upon which he could make the recording and leave it with Dr. Evans, plaintiff’s counsel appears to concede that no one mentioned it to Dr. Evans.  Under the circumstances, with the court order in place, it was incumbent upon plaintiff or plaintiff’s counsel to bring up that plaintiff had a separate recording device and offer to comply with the court order. 

Under the circumstances, the court finds that plaintiff failed to obey the court’s previous order, causing the IME to not proceed as ordered.  The court awards to defendant the reasonable expenses defendant has incurred due to the disobedience of the court order and suspension of the IME.   

Plaintiff in opposition does not challenge the reasonableness of the expenses sought by defendant.  The court has reviewed the expenses sought, and they appear reasonable, and the sanctions sought are awarded in full as requested.   

Plaintiff in the opposition seeks sanctions against HHS and its counsel for unsuccessfully asserting the plaintiff has engaged in misuse of the discovery process under CCP section 2023.030(a), specifically, the portion which provides:

“The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both.”

Since defendant has not unsuccessfully made the assertion that plaintiff engaged in misuse of the discovery process, but has successfully made this motion, sanctions sought by plaintiff will be denied.  

RULING:

Defendant HHS Construction, Inc.’s Motion for Monetary Sanctions is GRANTED. 

The Court finds that plaintiff failed to obey this court’s order of March 11, 2022. 

The Court accordingly awards to defendant HHS Construction, Inc. the reasonable expenses incurred due to plaintiff’s misuse of the discovery process, pursuant to CCP sections 2023.010 and 2023.030.

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $3,826.15 (10.0 hours @ $170/hour) [10 hours requested] plus $61.65 filing fee, and that the reasonable expenses incurred by defendant include Dr. Evans’ fee for the examination the sum of  $1,800 and the hotel room for plaintiff in the sum of $264.50 [Total sought $3,826.15], which sum is to be awarded in favor of defendant HHS Construction, Inc., and against plaintiff Mark Ellensohn, and plaintiff’s attorney of record, jointly and severally, payable within 30 days.  CCP sections 2023.010 and 2023.030.

Monetary sanctions sought in the opposition are DENIED.  

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.