Judge Stephen I. Goorvitch, Case 21STCV24005 2023-04-05 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 21STCV24005, Date: 2023-04-05 Tentative Ruling

Case Number: 21STCV24005 Hearing Date: April 5, 2023 Dept: 39

Ashley Olson v. Matrix Rehabilitation, Inc., et al.

Case No. 21STCV24005

Defendants’ Ex Parte Applications and Motion for Summary Judgment

Plaintiff Ashley Olson (“Plaintiff”) filed this employment action against Defendants Matrix Rehabilitation, Inc. and Patricia Apodaca (collectively, “Defendants”). The trial date is May 2, 2023. Defendants have filed two ex parte applications. First, Defendants seek to substitute a psychiatrist (Dr. Markham Kirsten) in place of a previously designated psychiatrist (Dr. Jacob Moussai) because Dr. Moussai is not available on the current trial date. Second, Defendants seek an order to compel an independent medical examination of Plaintiff.

The procedural history is straightforward. On February 23, 2023, Defendants served a timely demand for an independent medical examination (“IME”) of Plaintiff, to take place on March 30, 2023. (Declaration of Maia Mdinaradze, ¶ 5.) Plaintiff’s counsel served an objection that same date. (Id., ¶ 6.) The parties discussed the issue, and on March 14, 2023, Plaintiff’s counsel sent an email stating: “Attached, please find Plaintiff’s proposed Stipulation Re: Defense Medical Examination. If you are in agreement, we can confirm a date and finalize the stipulation.” (Id., ¶ 8 & Exh. E.)

Defendants’ counsel had designated Dr. Moussai as an expert on March 13, 2023. (Id., ¶ 4.) Then, four days later, on March 17, 2023, after receiving Plaintiff’s stipulation, Defendants’ counsel learned that Dr. Moussai was no longer available. (Id., ¶ 5.) That same date, March 17, 2023, Defendants’ counsel located a different psychiatrist, Dr. Markham Kirsten, who was available to conduct the examination on March 30, 2023, and to testify at trial. (Id., ¶¶ 6-7.) Defendants’ counsel emailed on Friday, March 17, 2023, and again on Monday, March 20, 2023, seeking a stipulation to the substitution. (Id., ¶¶ 7-9.) Defendants’ counsel made the requisite disclosures concerning Dr. Kirsten. (Id., Exh. F.) Defendants’ counsel also made clear that the only change would be to substitute Dr. Kirsten for Dr. Moussai, and that the procedure and scope of the examination would not change. (Id., Exh. G.) Plaintiff’s counsel did not respond to Defendants’ counsel until Wednesday, March 22, 2023, at 1:27 p.m., after the ex parte applications had been filed. (Id., ¶ 10 & Exh. #1.)

Now, Plaintiff’s counsel opposes Defendants’ ex parte application to augment their expert designations to substitute Dr. Kirsten for Dr. Moussai based upon the latter’s unavailability. The Court is baffled why Plaintiff’s counsel would not simply agree to substitute one psychiatrist for another psychiatrist within four days of the designation before any IME had been conducted when there would be no substantive or procedural change to the IME. Such substitutions are routine, and there would have been no prejudice to Plaintiff’s counsel. The record reflects that Defendants’ counsel was not dilatory. To the contrary, Defendants’ counsel identified a replacement expert on the same date that Dr. Moussai informed her of his lack of availability. The Court finds no good cause to prevent the substitution based upon this record.

Plaintiff’s counsel argues that Defendants’ counsel did not adequately meet-and-confer on this issue. Yet, he provides no explanation in his declaration why he did not respond to this issue until after the ex parte applications were filed. Plaintiff’s counsel also argues that the parties were in the process of stipulating to the IME “when Defendants sought a stipulation to augment the expert designation to include a new expert that was not previously disclosed.” (Plaintiff’s Opposition, p. 2:3-5.) Again, Plaintiff’s counsel demonstrates no prejudice or other good cause not to stipulate to replace Dr. Kirsten for Dr. Moussai based upon the latter’s unavailability.

Plaintiff’s counsel argues that “[t]his ex parte application, and inappropriate motion, is merely gamesmanship and brought in bad faith . . . .” (Plaintiff’s Opposition, p. 3:26-28.) To the contrary, the Court finds that Plaintiff’s counsel, not Defendants’ counsel, has been engaged in gamesmanship and has acted in bad faith based upon the following record: (1) Defendants’ counsel designated Dr. Moussai on March 13, 2023; (2) Plaintiff’s counsel stipulated to an IME on March 14, 2023; (3) On March 17, 2023, Defendants’ counsel learned that Dr. Moussai was not available; (4) On March 17, 2023, Defendants’ counsel identified a replacement expert; (5) Defendants’ counsel sought a stipulation on March 17, 2023, that would not entail any procedural or substantive change to the IME; (6) Plaintiff’s counsel did not respond until after the ex parte applications were filed; and (7) Plaintiff’s counsel articulates no good cause for his refusal to stipulate to this change. This is gamesmanship in an attempt to prevent Defendants from calling an expert witness to counter Plaintiff’s expert witness on emotional damages. The Court has considered Plaintiff’s counsel’s remaining arguments and finds none to be persuasive.

The Court advances and continues the trial date for three independent reasons. First, Plaintiff’s counsel objects to the Court ordering an IME based on an ex parte application, arguing that a noticed motion is required by Code of Civil Procedure section 2032.310(c). Plaintiff’s counsel states: “Plaintiff’s counsel intends to file additional papers and requests that Plaintiff receive her full statutory noticed time to respond to Defendants’ motion.” (Plaintiff’s Opposition, p. 4:8-12.) This alone is a basis to continue the trial date, as there is not sufficient time to hear a noticed motion in advance of the current trial date. Second, in the alternative, the Court does not anticipate being available to try this case on the current trial date of May 2, 2023. The Court has 18 trials set between April 11 and May 2, 2023. Of these cases, at least 11 jury trials would take priority over the instant case. One case is entitled to statutory preference under Code of Civil Procedure section 36(a); nine cases are older than the instant case; and one case is entitled to priority based upon other factors delineated in California Rules of Court, rule 3.729. Third, the Court finds that Plaintiff’s counsel’s gamesmanship in refusing to stipulate to a simple substitution of expert witness prevented the IME from occurring sufficiently in advance of trial, which precludes this case from proceeding to trial on the current trial date.

Based upon the foregoing, the Court orders as follows:

1. Defendants’ ex parte application to augment their expert witness designation is granted. Defendants may substitute Dr. Markham Kirsten for Dr. Jacob Moussai.

2. The Court construes Defendants’ ex parte application to order an IME as a noticed motion. The Court will hear the motion on May 26, 2023, at 8:30 a.m. Plaintiff may file a supplemental opposition, and Defendants may file a reply brief, based upon statutory deadlines.

3. The Court continues the hearing on Defendants’ motion for summary judgment to May 26, 2023, at 8:30 a.m.

4. The Court advances and vacates the final status conference and trial date. The Court sets this case for trial on its next available date:

Final Status Conference: May 24, 2024, at 9:30 a.m.

Trial: June 4, 2024, at 9:30 a.m.

The discovery and motions deadlines shall be based on the new trial date.

5. Defendants’ counsel shall provide notice and file proof of such with the Court.