Judge: William A. Crowfoot, Case: 20STCV05094, Date: 2023-01-12 Tentative Ruling

Case Number: 20STCV05094    Hearing Date: January 12, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

This action arises from an automobile collision, which occurred on approximately March 24, 2018, on Rosemead Boulevard in Los Angeles, California.  On said date, George Oketcho (“Plaintiff”) was stopped in his vehicle, when a separate vehicle driven by Carol Dubois-Chess (“Defendant Dubois-Chess”) collided with Plaintiff’s vehicle from behind at a high rate of speed.  Plaintiff alleges he suffered significant personal injury as a result of the collision.

 On February 7, 2020, Plaintiff commenced the instant action by filing a Complaint against Defendant Dubois-Chess, Hertz Vehicles, LLC, and Does 1 through 50 (collectively, “Defendants”).  Plaintiff’s Complaint alleges the following causes of action: (1) Negligence; and (2) Negligence Per Se.

On January 6, 2021, Defendant Dubois-Chess filed an Answer.  Subsequently, on January 27, 2021, Defendant Hertz Vehicles, LLC filed an Answer.

On February 26, 2021, Plaintiff filed a Request for Dismissal, dismissing Defendant Hertz Vehicles, LLC from this action, without prejudice.

On December 14, 2022, Defendant Dubois-Chess filed the following two motions, which are presently before the Court for consideration: (1) Motion for Leave To Conduct Independent Medical Examination of Plaintiff (Neurosurgical), and Request for Monetary Sanctions in the Amount of $939.15 Against George Oketcho and Counsel of Record, Jointly and Severally; and (2) Motion to Continue Trial and All Trial-Related Dates.  Plaintiff has not submitted an Opposition to either of the aforementioned Motions filed by Defendant Dubois-Chess.

II.          LEGAL STANDARD

A.   Motion For Leave to Conduct Independent Medical Examination

“In any case in which a plaintiff is seeking recovery for personal injuries, a 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.”  (Code Civ. Proc., § 2032.220, subd. (a).)  “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.”  (Code Civ. Proc., § 2032.220, subd. (b).)  “A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand.”  (Code Civ. Proc., § 2032.220, subd. (d).)

“The plaintiff to whom a demand for a physical examination under this article is directed shall respond to the demand [within 20 days after service] by a written statement that the examinee 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), (b).)

“The defendant may move for an order compelling response and compliance with a demand for a physical examination.”  (Code Civ. Proc., § 2032.240, subd. (b).)  “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.”  (Code Civ. Proc., § 2032.240, subd. (c).) 

B.   Motion to Continue Trial and All Trial-Related Dates

Trial dates are firm to ensure prompt disposition of civil cases.  (Cal. Rules of Court, rule 3.1332, subd. (a).)  Continuances are thus generally disfavored.  (Cal. Rules of Court, rule 3.1332, subd. (b).)  Nevertheless, the trial court has discretion to continue trial dates.  (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.)  Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause.  (Cal. Rules of Court, rule 3.1332, subd. (c); Hernandez, supra, 115 Cal.App.4th at 1246.)  Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.  (Cal. Rules of Court, rule 3.1332, subd. (c).)

          The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application.  (Cal. Rules of Court, rule 3.1332, subd. (d).)

On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution. (Code Civ. Proc., § 2024.050, subd. (a).)

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.” (Code Civ. Proc., § 2024.050, subd. (b).)

III.        DISCUSSION

A.   Motion For Leave to Conduct Independent Medical Examination

Defendant Dubois-Chess (hereinafter, “Defendant”) moves for an Order compelling Plaintiff to submit to an independent physical examination, pursuant to Code of Civil Procedure section 2032.240, subdivision (b), on the ground Plaintiff has refused to undergo a physical examination despite initiating the present action where Plaintiff prays for damages against Defendant for personal injuries.  (Code Civ. Proc., §§ 2032.220, subd. (a), 2032.240, subd. (b); LaScola Decl., ¶ 7 [Plaintiff’s counsel states, “we will not be producing Plaintiff for any IME’s.”].)  The Court observes Plaintiff has not submitted an Opposition to Defendant’s Motion.

Following review of Defendant’s arguments and submitted evidence, the Court concludes Defendant is entitled to an Order compelling Plaintiff to submit to an independent physical examination, pursuant to Code of Civil Procedure section 2032.240, subdivision (b).  (Code Civ. Proc., § 2032.240, subd. (b).)

Initially, the Court observes, by virtue of Plaintiff’s operative Complaint, Plaintiff presently seeks recovery for personal injuries suffered as a result of the subject automobile collision, which Plaintiff contends was caused by Defendant’s negligence.  (Compl., ¶¶ 15-17 [alleging, as a result of Defendant’s negligent acts, “Plaintiff suffered severe injuries and attendant damages” including, “medical expenses . . . in an amount to be established at the time of trial according to proof.”].)  Specifically, as stated within Plaintiff’s responses to Defendant’s Form Interrogatories, Plaintiff maintains he suffered “neck injuries, low back injuries, chest injuries, bilateral wrist injuries, and injuries to both knees” as a result of the subject automobile collision.  (LaScola Decl., Ex. A at pp. 11-12.)  Additionally, Plaintiff maintains he continues to suffer from the aforementioned injuries and requires future treatment by way of “[l]eft wrist arthroscopy surgery” (“[t]he costs associated with this treatment are approximately $65,000”) as well as “[r]ight ankle diagnostic arthroscopy, synovectomy, chondroplasty surgery” (“[t]he approximate costs associated with this treatment are $65,000”).  (LaScola Decl., Ex. A at pp. 12-13, 19, Ex. B at p. 8.)  The Court concludes, as Plaintiff unambiguously prays for damages against Defendant for personal injuries, Defendant is clearly entitled to a physical examination of Plaintiff, so long as the demand for examination complies with the requirements outlined within Code of Civil Procedure section 2032.220.  (Code Civ. Proc., § 2032.220.)

Upon review, the Court concludes the physical examination noticed by Plaintiff properly complies with the requirements outlined within Code of Civil Procedure section 2032.220.  (Code Civ. Proc., § 2032.220.)  As noted in the “Legal Standard” Section of this Order, Code of Civil Procedure section 2032.220, enumerated various requirements with respect to a defendant’s demand for physical examination of a plaintiff.  (Ibid.)  These requirements include the following: (a) the examination must not include any diagnostic test or procedure that is painful, protracted, or intrusive; (b) the examination is conducted at a location within 75 miles of the residence of the examinee; and (c) the examination must be scheduled for a date that is at least 30 days after service of the demand.  (Ibid.)  The Court observes, Defendant’s Demand For Independent Medical Examination, which was served upon Plaintiff on October 4, 2022, complies with the whole of the aforementioned requirements.  (LaScola Decl., Ex. D.)  Specifically, Defendant’s Demand indicates that the physical examination would take place on November 21, 2022 (48 days from the date of service).  Additionally, Defendant’s Demand provides the examination will be conducted by Luke Macyszyn, M.D. (“Dr. Macyszyn”), within Dr. Macyszyn offices, located approximately 25 miles from Plaintiff’s residence.  (LaScola Decl., Ex. D at pp. 1-2 [identifying, the office of Luke Macyszyn, M.D. is located in Marina Del Rey, California]; see Compl., ¶ 2 [alleging, Plaintiff resides in Tarzana, California].)  Furthermore, Defendant’s Demand specifies that the examination to be conducted by Dr. Macyszyn would be a physical examination of Plaintiff, and “will not include any diagnostic test that is painful, protracted or intrusive.”  (LaScola Decl., Ex. D at p. 2.)  Accordingly, the Court concludes the Demand served upon Plaintiff was proper and complies with the requirements outlined within Code of Civil Procedure section 2032.220.  (Code Civ. Proc., § 2032.220.)

Based upon the Court’s findings outlined above, the Court concludes Defendant is entitled to an Order compelling Plaintiff to submit to a physical examination, as identified within the Demand served upon Plaintiff on October 4, 2022.  (Code Civ. Proc., § 2032.240, subd. (b).)  The Court, furthermore, concludes monetary sanctions may be properly issued against Plaintiff and Plaintiff’s counsel of record, jointly and severally, pursuant to Code of Civil Procedure section 2032.240, subdivision (c).  (Code Civ. Proc., §  2032.240, subd. (c).)  As Plaintiff has failed to submit an opposition to the present Motion explaining the reasons for which Plaintiff has refused to submit to a physical examination, the Court cannot find Plaintiff acted with substantial justification in refusing the same.  (Ibid.)  Accordingly, the Court concludes monetary sanctions may be appropriate issued against Plaintiff and Plaintiff’s counsel, jointly and severally, in the sum of $451.65 (hourly rate of $195 multiplied by 2 hours in preparing and appearing for Motion, plus $61.65 filing fee).  (LaScola Decl., ¶ 8.)

B.   Motion to Continue Trial and All Trial-Related Dates

Defendant Dubois-Chess (hereinafter, “Defendant”) moves for an Order continuing the trial date of February 2, 2023, by approximately four months to June 1, 2023, for the purposes of completing two independent medical examinations of Plaintiff prior to trial, pursuant to California Rules of Court, Rule 3.1332, subdivision (c)(6).  (Cal. Rules of Court, rule 3.1332, subd. (c)(6).)  The Court observes Plaintiff has not submitted an Opposition to Defendant’s Motion.

Following review of Defendant’s arguments and submitted evidence, the Court concludes Defendant has demonstrated good cause warranting a trial continuance, pursuant to California Rules of Court, Rule 3.1332, subdivision (c)(6).  (Cal. Rules of Court, rule 3.1332, subd. (c)(6) [“Circumstances that may indicate good cause include: ¶(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.”].)  The Court observes there have been two previous trial continuances in this action, with the most recently trial continuance having been granted by this Court on October 3, 2022, as a result of Defendant’s a Motion to Continue Trial filed on September 8, 2023 (hereinafter, “Prior Motion”).  (LaScola Decl., ¶ 4, Ex. A-B.)  The Court observes Defendant’s Prior Motion sought a continuance of the trial date for reasons nearly identical to Defendant’s present Motion—namely, Defendant’s need to complete multiple independent medical examinations of Plaintiff prior to trial.  (Id., Ex. A.)   The Court previously found Defendant’s need to conduct the aforementioned independent medical examinations equated to good cause to permit a trial continuance in this action.  (Id., Ex. B.)  Following the Court’s granting of a trial continuance on October 3, 2022, Defendant immediately served a Demand For Independent Medical Examination upon Plaintiff on October 4, 2022.  (Id., ¶ 5 [“The day after hearing on the Motion to continue the trial and all trial-related dates . . . my firm served notice of the two IME’s.”].)  Defendant presently moves for a third trial continuance as Plaintiff has refused to undergo “any IME’s”, despite having been served with Defendant’s Demand For Independent Medical Examination.  (Ibid.)  Defendant has filed two discovery motions (one of which the Court addressed above), for the purposes of compelling Plaintiff’s submission to the requested independent medical examinations.  Defendant contends, despite the aforementioned diligent efforts, Defendant has been unable to obtain the subject discovery as a result of Plaintiff’s refusal to submit to the relevant independent medical examinations.  The Court agrees the foregoing constitutes good cause to warrant a third continuance in this action, pursuant to California Rules of Court, Rule 3.1332, subdivision (c)(6).  (Cal. Rules of Court, rule 3.1332, subd. (c)(6).)

IV.         CONCLUSION

Defendant Carol Dubois-Chess’ Motion for Leave To Conduct Independent Medical Examination of Plaintiff (Neurosurgical), and Request for Monetary Sanctions Against George Oketcho and Counsel of Record, Jointly and Severally is GRANTED.  Plaintiff is hereby ordered to submit to a physical examination before Luke Macyszyn, M.D. on February 6, 2023 at 9:00 a.m.  Additionally, Plaintiff and Plaintiff’s counsel of record are ordered to pay monetary sanctions, jointly and severally, in the amount of $451.65, within 30 days of this Court’s Order.

Defendant Carol Dubois-Chess’ Motion to Continue Trial and All Trial-Related Dates is GRANTED.  As the June 1, 2023 trial date requested by Defendant is not available and the next available trial date is further into the future than warranted by this motion, the trial date is continued to May 10, 2023 at 8:30 a.m. and the Final Status Conference is continued to April 26, 2023 at 10:00 a.m.  All trial-related dates and deadlines are additionally continued in accordance with the new trial date.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.