Judge: William A. Crowfoot, Case: 20STCV39698, Date: 2022-08-11 Tentative Ruling

Case Number: 20STCV39698    Hearing Date: August 11, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On October 15, 2020, plaintiff Steven Feinberg (“Plaintiff”) filed this action against defendant 760 South San Pedro Street LLC (“Defendant”) arising from a slip and fall that occurred on November 5, 2018.  Before the Court are 5 discovery motions filed by Defendant.  Defendants moves for orders compelling Plaintiff’s responses to written discovery, Plaintiff’s deposition, and Plaintiff’s independent medical examination (“IME”).  Defendant also seeks an order deeming admitted the truth of the matters specified in its Request for Admissions (Set One).  All of the motions are unopposed.  Defendant does not request sanctions in connection with any of its motions.

Responses to Written Discovery

On May 2, 2022, Defendant served Plaintiff with Special Interrogatories (Set Two) and Request for Production of Documents (Set Two) by mail.  Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses.  (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)   A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product.  (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) 

Plaintiff did not oppose the Motion and it is undisputed responses were not served.  Defendant’s Motion is GRANTED and Plaintiff is ordered to serve verified responses without objections to Defendant’s Special Interrogatories (Set Two) and Request for Production of Documents (Set Two) within 20 days of the date of this Order.

Deem Admitted

On May 2, 2022, Defendant served Plaintiff with Requests for Admissions (Set One) by mail.  Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.  (Code Civ. Proc., § 2033.280, subd. (b).)  The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  (Code Civ. Proc., § 2033.280, subd. (c).)

Plaintiff did not oppose the Motion and it is undisputed responses were not served.  Defendant’s Motion to deem admitted is GRANTED.  

Compel Deposition

On May 2, 2022, Defendant served an amended deposition notice scheduling Plaintiff’s deposition for May 23, 2022 at the offices of P.K. Schrieffer LLP in West Covina, California.  Plaintiff did not serve any objections and failed to appear for his deposition as scheduled.  Plaintiff also did not respond to a letter inquiring about his nonappearance. 

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.)  A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).)  The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled.  (Code Civ. Proc., § 2025.410, subd. (a).)  In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.  (Code Civ. Proc., § 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).)

Plaintiff did not oppose this motion and it is undisputed that he failed to appear for his noticed deposition.  Accordingly, Defendant’s motion to compel his appearance is GRANTED.  Plaintiff is ordered to appear for his deposition within 20 days of the date of this Order. 

Compel IME

On May 2, 2022, Defendant served a Fourth Amended Demand for Physical Examination of Plaintiff demanding that Plaintiff submit to a physical examination by Dr. Keith E. Liberman, M.D., a licensed orthopedic surgeon, on June 7, 2022 at 10:15 a.m. at 50 N. La Cienega Blvd., Suite 215 in Beverly Hills, California. 

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (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 for physical examination without leave of the court after that defendant has been served or has appeared (Code Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code Civ. Proc., § 2032.220, subd. (d)). 

Within 20 days after service of the demand, the plaintiff to whom the demand is directed shall serve a written statement that he or she 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 of Civ. Proc., § 2032.230, subd. (a).)

Plaintiff did not oppose this motion and it is undisputed that Plaintiff did not serve a response to Defendant’s demand for an IME or appear for his physical examination.  Accordingly, Defendant’s motion is GRANTED.  Plaintiff is ordered to submit to a physical examination with Dr. Liberman within 45 days of the date of this order. 

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.