Judge: Steven A. Ellis, Case: 20STCV09636, Date: 2023-12-19 Tentative Ruling
Case Number: 20STCV09636 Hearing Date: January 26, 2024 Dept: 29
Motion to Compel the Deposition of Plaintiff
Motion for Order Compelling Plaintiff to Appear for an
Independent Medical Examination
Tentative
The Court
DENIES, without prejudice, MTA’s motion to compel the deposition of Plaintiff.
The
Court DENIES, without prejudice, MTA’s motion to compel the physical
examination of Plaintiff.
The Court DENIES both parties’ requests for
sanctions on both motions.
Background
Plaintiff
German Rodriguez (“Plaintiff”) alleges that on August 27, 2019, he was seriously
injured when he fell to the floor of a bus near the intersection of West Carson
Street and the 110 Freeway in Carson.
On March
10, 2020, Plaintiff filed the Complaint in this action against Defendants Los
Angeles County Metropolitan Transportation Authority (“MTA”), Doe Bus Driver,
and Does 1 through 100. In the Complaint,
Plaintiff asserts causes of action for negligence; liability for the wrongful act
or omissions by public entity employees under Government Code Section 815.2;
and violation of the duties and responsibilities of a common carrier under Civil
Code sections 2100, 2101, and 2103.
On April 7, 2020, MTA filed its Answer to the Complaint.
MTA
noticed the deposition of Plaintiff several times. (Doroshow Depo. Decl., ¶¶ 4-12.) Most recently, MTA noticed the deposition for
September 6, 2023; Plaintiff’s counsel confirmed Plaintiff’s availability for
that date. (Id., ¶¶ 12-13 &
Exhs. 9-10.) On August 31, however,
Plaintiff’s counsel stated that Plaintiff was not available. (Id., ¶ 14.)
With
regard to the medical examination, MTA noticed the physical examination for
July 11, 2023; Plaintiff’s counsel confirmed Plaintiff’s availability for that
date. (Doroshow IME Decl., ¶¶ 5-6 &
Exhs. B-C.) Plaintiff failed to
appear. (Id., ¶ 7 & Exh. D.) MTA then noticed the examination for
September 12; Plaintiff did not serve any objection but Plaintiff’s counsel
informed MTA on September 7 that the examination would not proceed. (Id, ¶¶ 8-9.)
On October
16, 2023, MTA filed the motion to compel Plaintiff’s deposition. Plaintiff filed his opposition on November
14, and MTA filed its reply on December 19.
After the hearing was continued, MTA filed a second reply on January 19,
2024.
On
November 7, 2023, MTA filed the motion to compel an IME of Plaintiff. Plaintiff
filed his opposition on November 14, and MTA filed its reply on January 19.
The
Court granted the motion of Plaintiff’s counsel to be relieved on December 19,
2023.
The
Court notes that MTA’s replies were (incorrectly) served on Plaintiff’s former
counsel, not on Plaintiff. As these
documents were not properly served, the Court disregards them.
Legal Standard
Deposition
“Any party may obtain discovery … by taking in California the oral
deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210
through 2025.280 provide the requirements for (among other things) what must be
included in a deposition notice, when and where depositions may be taken, and
how and when the notice must be served.
“The service of a deposition notice … is effective to require any
deponent who is a party to the action or an officer, director, managing agent,
or employee of a party to attend and to testify, as well as to produce any
document, electronically stored information, or tangible thing for inspection
and copying.” (Code Civ. Proc., §
2025.280, subd. (a).)
If a party contends that a deposition notice does not comply with
the provisions of sections 2025.210 through 2025.280, the party must serve a
written objection at least three days before the deposition. (Code Civ. Proc., § 2025.410, subd. (a).)
“If, after service of a deposition notice, a party to the action
or an officer, director, managing agent, or employee of a party, or a person designated by an organization
that is a party under Section 2025.230, without having served a valid objection under Section 2025.410,
fails to appear for examination, or to proceed with it, or to produce
for¿inspection any document, electronically stored information, or tangible
thing described in the deposition notice, the party giving the notice may move
for an order compelling the deponent’s attendance and testimony, and the
production for inspection of any document, electronically stored information,
or tangible thing described in the deposition notice.” (Code Civ. Proc., §
2025.450, subd. (a).) Such a motion to compel must show good cause
for the production of documents and, when a deponent has failed to appear, the
motion must be accompanied “by a declaration stating that the petitioner has
contacted the deponent to inquire about the nonappearance.” (Id., subd. (b).)
“Implicit in the requirement that counsel contact
the deponent to inquire about the nonappearance is a requirement that counsel
listen to the reasons offered and make a good faith attempt to resolve the
issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection
Serv. (2001) 86 Cal.App.4th 1109, 1124. See
also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be
given to accommodating schedules in setting depositions).)
When a motion to compel is granted, “the court shall impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor
of the party who noticed the deposition and against the deponent or the party
with whom the deponent is affiliated, unless the court finds that the one
subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.” (Id., § 2025.450,
subd. (g)(1).)
In Chapter
7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines
“[m]isuses of the discovery process” to include “[f]ailing to respond to or to
submit to an authorized method of discovery.”
Where a party or attorney has engaged in misuse of the discovery
process, the court may impose a monetary sanction in the amount of “the
reasonable expenses, including attorney’s fees, incurred by anyone as a result
of that conduct.” (Id., § 2023.030,
subd. (a).)
Physical Examination
Code of Civil Procedure section 2032.220 provides, in pertinent
part:
(a) In 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.
(b) A defendant may make a demand under this article without leave of court
….
(c)
A demand under
subdivision (a) shall specify the time, place, manner, conditions, scope, and
nature of the examination, as well as the identity and the specialty, if any,
of the physician who will perform the examination.
(d) A physical examination demanded under subdivision (a) shall be scheduled
for a date that is at least 30 days after service of the demand ….
Within 20 days of service of a demand for a physical examination under section
2032.220, subdivision (a), the plaintiff to whom the demand is directed must
respond in writing and state that the plaintiff “will comply with the demand as
stated, will comply with the demand as specifically modified by the plaintiff,
or will refuse, for reasons specified in the response, to submit to the
demanded physical examination.” (Code
Civ. Proc., § 2032.230, subd. (a).)
Failure to serve a timely response waives any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).)
If a plaintiff fails to comply, the defendant may
move for an order compelling plaintiff to appear at and submit to a physical
examination. (Code Civ. Proc., § 2032.240, subd. (b), and § 2032.250, subd.
(a).) The motion “shall be accompanied
by a meet and confer declaration.” (Code
Civ. Proc., § 2032.250, subd. (a).)
“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 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.” (Code Civ. Proc., § 2032.250, subd. (b).)
Discussion
Deposition
After
several prior attempts, MTA noticed the deposition of Plaintiff for September
6, 2023. (Doroshow Depo. Decl., ¶ 12
& Exh. 9.) Plaintiff’s counsel
initially confirmed Plaintiff’s availability but later, on August 31, stated
that Plaintiff would not attend. (Id.,
¶¶ 13-14 & Exhs. 10-11.)
MTA now moves to compel Plaintiff’s deposition. MTA is certainly entitled to take Plaintiff’s
deposition in discovery, but its motion does not satisfy the applicable
statutory requirements. There is no
declaration accompanying the motion that states that MTA contacted Plaintiff’s
counsel “to inquire about
the nonappearance,” as is required. (Code Civ. Proc., § 2025.450, subd. (b).)
Accordingly, the
Court must DENY the motion to compel Plaintiff’s deposition. The denial is without
prejudice.
Physical
Examination
MTA served
Plaintiff with a demand for a physical examination on July 11, 2023, and then
again on September 12, 2023. (Doroshow IME
Decl., ¶¶ 5, 8 & Exhs. B, E.) Plaintiff
did not object and did not appear. (Id.,
¶¶ 6-7, 9 & Exhs. C-D, F.)
MTA now moves to compel the physical examination of Plaintiff. MTA is certainly entitled to the examination,
but its motion does not satisfy the applicable statutory requirements. The motion is not “accompanied by a
meet and confer declaration,” as is required.
(Code Civ. Proc., § 2032.250, subd. (a).)
Accordingly, the
Court must DENY the motion to compel the physical examination of
Plaintiff. The denial is without
prejudice.
Sanctions
The Court denies
both parties’ requests for sanctions.
MTA’s request is denied as its motions are denied. Plaintiff’s is denied as MTA has acted with
substantial justification in attempting to enforce its rights, and Plaintiff’s
obligations, under the Civil Discovery Act.
Conclusion
The Court
DENIES, without prejudice, MTA’s motion to compel the deposition of Plaintiff.
The
Court DENIES, without prejudice, MTA’s motion to compel the physical
examination of Plaintiff.
The
Court DENIES both parties’ requests for sanctions on both motions.
Moving
party is ordered to give notice.