Judge: Steven A. Ellis, Case: 23STCV16910, Date: 2024-12-30 Tentative Ruling

Case Number: 23STCV16910    Hearing Date: December 30, 2024    Dept: 29

Azoulay v. Essex Property Trust
Case No. 23STCV16910
Defendant’s Motion to Compel Further Responses to Requests for Production (Set Two)

Tentative

The motion is denied.

Background

On July 19, 2023, Plaintiff Sara Azoulay (“Plaintiff”) filed the complaint in this action against Essex Property Trust, Inc. (“Defendant”), Stefania Ghilarducci, and Does 1 through 100, asserting causes of action for general negligence and premises liability arising out of an incident on August 2, 2021, in which, Plaintiff alleges she was injured when she slipped and fell on a slippery substance in a parking garage on Wilshire Boulevard in Los Angeles.

On August 28, 2023, Defendant filed an answer to the complaint.

On September 6, 2023, Plaintiff filed a request for dismissal of Defendant Ghilarducci.

On June 5, 2024, Plaintiff amended her complaint to name Essex Portfolio, L.P. as Doe 1 and Essex Management Corporation as Doe 2.  These defendants filed an answer on July 17, 2024.

As it relates to the matter set for hearing on December 30, 2024, Defendant filed this motion to compel further discovery responses on December 3, 2024.  Plaintiff filed an opposition on December 12, and Defendant filed a reply on December 17.

The parties participated in an Informal Discovery Conference on November 20, 2024.

Legal Standard

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete.  (2) A representation of inability to comply is inadequate, incomplete, or evasive.  (3) An objection in the response is without merit or too general.”  (Code Civ. Proc., § 2031.310, subd. (a).)

Notice of a motion to compel further responses must be given “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Id., subd. (c).)

A motion to compel further responses must set forth specific facts showing good cause for the discovery and must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a “concise outline of the discovery request and each response in dispute.” (Id., subd. (b)(1)-(3); Cal. Rules of Court, rule 3.1345.)

“[T]he 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 further response to a demand, 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., § 2031.310, subd. (h).)

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction ordering that any person “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.” A “misuse of the discovery process” includes (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).)

Discussion

Does a defendant have a right to obtain a copy of the audio recording of a defense medical examination made by or on behalf of the plaintiff?  That is the question that this motion raises.  There appears to be no authority on point: neither party cites any appellate case law addressing this issue, and this Court’s independent research has revealed none. 

On July 17, 2024, Plaintiff appeared for and submitted to a defense medical examination by orthopedic surgeon Jeffrey Korchek, M.D.  (Muench Decl., ¶ 4 & Exh. 1.)  Plaintiff was accompanied by a chiropractor, David Birznieks, who audio recorded the examination.  (Id., ¶ 4.)

On September 12, 2024, Defendant served Plaintiff with Requests for Production (Set Two).  (Id., ¶ 6 & Exh. 4.)  There is only one request in this set: Request No. 12, which requests production of “A full and complete copy of the audio recording” of the physical examination performed by Dr. Korchek on July 17, 2024.  (Id., Exh. 4.)

Plaintiff served objections.  (Id., ¶ 7 & Exh. 5.)  The parties met and conferred but were unable to resolve the dispute.  (Id., ¶¶ 8-10.)

The Court begins its analysis of this issue with the Code.  The Civil Discovery Act contains express provisions regarding audio recordings of examinations conducted as part of litigation discovery.

Code of Civil Procedure section 2032.510, subdivision (a), which applies to a physical examination of a plaintiff, provides as follows:

“The attorney for the examinee or for a party producing the examinee, or that attorney’s representative, shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.”

Code of Civil Procedure section 2032.530, subdivision (a), which applies to a mental examination of a plaintiff, provides as follows:

“The examiner and examinee shall have the right to record a mental examination by audio technology.”

The difference between these provisions is stark.  In a mental examination, both the examiner and the plaintiff have the right to record the examination.  In a physical examination, the plaintiff’s attorney (or the attorney’s representative) – and only the plaintiff’s attorney (or the attorney’s representative) – has the right to record the examination.  For a physical examination, the examiner has no such right.

The Legislature’s intent in drawing this distinction is unclear.  (See 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2024) ¶ 8:1588.1.)  But draw the distinction the Legislature did. 

The Legislature has conducted a careful balancing of the rights and obligations of the parties throughout the Civil Discovery Act, including but not limited to in connection with physical and mental examinations.  Defendants can demand one physical examination of a personal injury plaintiff as of right, and can obtain additional physical examinations and mental examinations for good cause shown.  (Code Civ. Proc., §§ 2032.220, 2032.310.)  Plaintiffs must submit to those examinations.  Plaintiffs’ counsel can record a physical examination.  (Code Civ. Proc., § 2032.510, subd. (a).)  The examiner and Plaintiff can record a mental examination.  (Code Civ. Proc., § 2032.530, subd. (a).) 

Reasonable minds may certainly disagree about the wisdom of some or all of these rules.  But where the Legislature has spoken, the role of the courts is to follow and implement the rules established by the Legislature (with, of course, some exceptions not applicable here).  If litigants disagree, any request for redress must be directed to the Legislature, not to the courts.

The Court concludes that this is one of the instances in which the Legislature has spoken.  The discovery sought by Defendant would, if ordered, be inconsistent with the distinction drawn by the Legislature; it would give defendants the right to obtain audio recordings of physical examinations, when the Legislature has decided, in the Civil Discovery Act, that defendants do not have that right.

Accordingly, the motion to compel is denied as being inconsistent with the clear direction of the Legislature in the express provisions of the Civil Discovery Act.

The Court need not reach, and does not reach, Plaintiff’s other objections to the discovery.

Neither party seeks sanctions.

Conclusion

The Court DENIES Defendant’s motion to compel.

Moving party is ordered to give notice.