Judge: Stephen Morgan, Case: 21AVCV00228, Date: 2022-09-29 Tentative Ruling

Case Number: 21AVCV00228    Hearing Date: September 29, 2022    Dept: A14

Background

This is a motor vehicle – personal injury case. Plaintiff Maria Guzman Cortez (“Plaintiff”) alleges that on or about October 30, 2019 at or near the East Avenue Sand 47'h St. East, Palmdale, CA, 93552, Defendant Teresa Walden (“Defendant”) and Doe Defendants were operating and driving the vehicle(s) involved in the accident and proximately caused injuries and damages Plaintiff by negligently, wantonly, recklessly, tortuously and unlawfully entrusting, permitting, managing, maintaining, servicing, repairing, inspecting, operating, and driving said vehicle(s). 

On March 26, 2021, Plaintiff filed her Complaint alleging one cause of action for Personal Injury (by way of Negligence).  

On June 09, 2021, Defendant filed her Answer. 

On August 15, 2022, Defendant filed her Motion to Compel Custodian of Records, Allstar Imaging to Comply with Deposition Subpoena, and Personally Attend, Give Testimony, and Produce Documents and Things at Deposition (“Motion to Compel Custodian of Records”).

On August 26, 2022, Defendant filed her Motion for Order that Plaintiff Must Submit to a Physical Examination and an order for Imposing Monetary Sanctions (“Motion to Compel IME”).

On September 01, 2022, the Court continued the Motion to Compel Custodian of Records to September 29, 2022. Both Motions are now set for hearing on September 29, 2022.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . . before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The noticed hearing is set for September 29, 2022. An Opposition was due on September 15, 2022. Should an Opposition be filed, it is now untimely.

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Legal Standard

Standard for Compelling Non-Party Deposition – A party may obtain discovery from a nonparty within California through:

1. An oral deposition,

2. A written deposition, or

3. A deposition for the production of business records and things.

    

   (See Cal. Code Civ. Proc. § 2020.010(a).)

    

   To require the production of any document or tangible thing for inspection and copying of a non-party deponent, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant. (Code Civ. Proc., §§ 2020.010(b), 2025.280(b); see also Sears, Roebuck & Co. v. National Union Fire Insurance Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by Cal. Code of Civil Procedure section 2020.010, et seq., and is primarily carried out by way of subpoena]. While penalties for disobedience of a subpoena are generally governed by Cal. Code of Civil Procedure §§ 1991–1994, in the case of subpoenas in the context of discovery, the provisions governing subpoenas are modified by the more specific provisions of Cal. Code Civ. Proc. §§ 2016.010, et seq. (See Code Civ. Proc., §§ 2020.010, et seq.) 

    

   If a deponent fails to appear for deposition, the party seeking to depose the deponent may bring a motion for an order compelling deposition. (See Cal. Code Civ. Proc. §§ 1987.1, 2025.480.)  

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (Cal. Code Civ. Proc., § 2025.480(a).) This motion must be made no later than sixty (60) days after completion of the deposition record. (Cal. Code Civ. Proc., § 2025.480(b).) For non-parties, objections to a subpoena constitute a “record of deposition” for purposes of Cal. Code Civ. Proc. § 2025.480(b). (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th at 127 [holding “that the 60-day limit applies because a response to a business records subpoena, namely, objections, is a ‘record of the deposition.’ ”]. If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given, or the production be made on the resumption of the deposition. (Cal. Code Civ. Proc., § 2025.480(i).) The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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. (Cal. Code Civ. Proc., § 2025.480(j).) 

Additionally, the notice of this motion shall be given to all parties and to the deponent. (Cal. Code Civ. Proc., § 2025.480(c).  

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Legal Standard for Compelling IME – “As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” (Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 258.) 

Cal. Code Civ. Proc. § 2032.220(a) states, “[i]n any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:¿(1) The examination does not include any diagnostic test¿or procedure that is painful, protracted, or intrusive.¿ (2) The examination is conducted at a location within 75 miles of the residence of the examinee.”¿(Cal. Code Civ. Proc. §2032.220(a).) Subdivision (b) provides, “[a]¿defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.”¿ (Cal. Code Civ. Proc. §2032.220(b).)¿ 

¿ 

Under Cal. Code Civ. Proc. §2032.250(a), “[i]f a defendant who has demanded a physical examination under this article, on receipt of the plaintiff's response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration…”    

Meet and Confer Requirement – A motion compelling compliance with a demand for a physical examination must be accompanied by a meet and confer declaration. (Cal. Code Civ. Proc., §2032.250(a).)¿¿The Court notes that the requirement has been satisfied. (Decl. Christopher Babadjanian ¶¶ 9-11; Exhs. F-G.)

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Discussion

Application –

1. Motion to Compel Custodian of Records

Defendant served a subpoena for documents on Allstar Imaging on July 05, 2022. (Mtn. to Compel Custodian of Records, Decl. Christopher Babadjanian ¶ 8; Exh. F.) The documents were handed to “Arlene, front desk on behalf of Custodian of Records at Allstar Imaging.” (Id., Exh. F.) Defendant declares that on July 29, 2022 her counsel’s office called Allstar Imaging to confirm the Custodian of Records attendance at deposition, Arlene stated that the films were ready to be picked up for $100.00/set, defense firm informed Arlene that the call was to confirm the deposition, and Arlene advised that the person that defense firm intended to depose was no longer working at the facility. (Id., Decl. Christopher Babadjanian ¶ 9.) Following this, discussions ensued in which Arlene stated “you should be deposing the chiropractor who referred her to us, not us[]”  (id. Decl. Christopher Babadjanian ¶10); that the technician who took plaintiff’s imaging studies was no longer working for Allstar Imaging (id., Decl. Christopher Babadjanian ¶ 11); and Christopher Babadjanian (“Babadjanian”) himself informed Arlene that compliance with the deposition subpoena was mandatory (ibid.). The Custodian of Records for Allstar Imaging did not appear and Babadjanian sent Allstar Imaging a meet and confer seeking the reason for the non-appearance and alternate dates. (Id., Decl. Christopher Babadjanian ¶¶ 12-13.) To date, Babadjanian declares that he has had no communication with Allstar Imaging. (Id., Decl. Christopher Babadjanian ¶ 14.) There is no opposition.

While the Court would normally grant such a motion, Babadjanian’s declaration in the Motion to Compel Custodian of Records is contradicted by his own declaration and emails in the Motion to Compel IME:

• “My office had subpoenaed plaintiff’s MRI films from Allstar Imaging but was

  unable to get the films because Allstar Imaging no longer exists” (Motion to Compel IME, Decl. Christopher Babadjanian ¶ 6.)

• “It appears AllStar Imaging is no longer in existence. If you know of their current address, please provide. Otherwise, in order to avoid any further need for imaging by our IME physician, we request that you bring a copy/disc of the actual MRI films.” (Id., Exh. C.)

The Court inquires at the hearing.

1. Compel IME

As Plaintiff is seeking recovery for personal injuries, Defendant is entitled to one physical examination of each Plaintiff, subject to the conditions set out by Cal. Code Civ. Proc. §2032.220. (See Cal. Code Civ. Proc. §2032.220(a).) 

Defendants are moving the Court to order Plaintiff to appear for her orthopedic IME. Defendants provide that Plaintiff is alleging injuries to her lower back caused by Defendant’s negligence and a physical examination by orthopedic surgeon James Kayvanfar, M.D., is needed in order to investigate the claims. (Motion to Compel IME 5:7-18.)

Here, Plaintiff has put her physical condition in controversy by alleging that all defendants proximately caused her injuries, which require medical and related expenses. (Complaint ¶¶ 7-10.) Plaintiff’s responses to Form Interrogatories, Set One, delineate the “injuries” to “lower back pain, which is frequent, described as sharp, aching and pins and needles.” (Id., Exh. A Response 6.2.) Defendant noticed Plaintiff for her IME on April 05, 2022 for July 01, 2022 at 3:00 p.m. (Id., Exh. B.) Pursuant to statute, all examinations were scheduled for a time period greater than 30 days from the notice. (Cal. Code Civ. Proc. §2032.220(d).) The notice described the time, place, and specialty of the physician and the scope of the exam was described:

The examination will be conducted for the purpose of determining, evaluating and assessing the plaintiff's physical condition and claims of injury in controversy in this action. Claims of continuing, ongoing or permanent problems, if any, will be within the scope of the examination, including claims for future care and/or surgery.

(Motion to Compel IME, Exh. B.)

No Opposition has been filed.

Accordingly, as Defendant is entitled to a physical examination of Plaintiff due to her claims of physical injury, the Motion to Compel IME is GRANTED.

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Sanctions

Plaintiff requests sanctions in the amount of $850.68 [4 hrs @ $160.17/hr + 2 hrs @ $75.00 hr (legal assistant work) + $60.00 filing fee] and $1,402.12 for the Motion to Compel IME [2.75 hrs @ $160.17/hr + $900.00 no show fee + $61.65 filing fee].

Under Cal. Code Civ. Proc. § 2020.240, a deponent who disobeys a deposition subpoena in any manner may be punished for contempt, without the necessity of a prior order of the court directing compliance by the witness and is also subject to a monetary penalty of $500.00, as well as the payment of damages to the party aggrieved by his disobedience. (Cal. Code Civ. Proc. § 2020.240; see also Cal. Code Civ. Proc. § 1992.) That is, the court may order that the disobedience be treated as contempt (Cal. Code Civ. Proc. § 2020.240) or, in the alternative, issue a warrant for the arrest of the witness or person who fails to appear (Cal. Code Civ. Proc. § 1993).

Under Cal. Code Civ. Proc. § 2032.240(c), 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 Court declines to impose sanction for the Motion to Compel Custodian of Records until after the hearing.

The Court imposes a sanction of $850.68 for the Motion to Compel IME.

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Conclusion

The Court declines to rule on Defendant Teresa Walden’s Motion to Compel Custodian of Records, Allstar Imaging to Comply with Deposition Subpoena, and Personally Attend, Give Testimony, and Produce Documents and Things at Deposition until after the hearing.

Defendant Teresa Walden’s Motion for Order that Plaintiff Must Submit to a Physical Examination and an order for Imposing Monetary Sanctions is GRANTED.

Plaintiff Maria Guzman is ordered to appear for her physical examination with orthopedic surgeon James Kayvanfar, M.D., on October 28, 2022 at 3:00 p.m. at 24318 Walnut Street Newhall, CA 91321.