Case Number: BC650202 Hearing Date: August 29, 2018 Dept: 2

Defendants’ Motion for an Order Imposing Issue/Evidentiary and Monetary Sanctions of $6,145.00 against Plaintiffs, filed on 7/31/18 is GRANTED, in part.

On 7/10/18, the court granted Defendants’ motion to compel Plaintiffs to appear for their mental examinations. The motion specifically set forth in the notice that the mental examinations were set for 7/17/18 for both Plaintiffs as required by Cal Code Civil Procedure § 2032.310, which requires the motion to set forth “time, place, manner, conditions, scope and nature of the examinations … .” Cal Code Civil Procedure § 2032.310(b).

On 7/12/18, Plaintiffs’ counsel advised by letter that neither Plaintiff would be available on those dates. Motion, Ex. F. Plaintiffs further maintained that the examinations were unnecessary. Motion, Ex. G.

Defendant’s counsel emailed Plaintiff’s counsel on 7/12/18 at 10:50 a.m. that the dates could not be moved, but if Plaintiffs wished to cancel they could do so by the next business day and sign a stipulation (presumably to waive emotional distress claims over and above that normally associated with the physical injuries suffered pursuant to Cal Code Civil Procedure § 2032.320). Opposition, Ex. A.

Apparently, Plaintiffs did not cancel the examinations or sign the required stipulations, and still maintained, according to their objection, that by submitting their own psychological evaluation, further mental examinations were unnecessary. Motion, Ex. G.

This position was unreasonable given the court’s order.

Under the circumstances, an issue/evidentiary sanction is not warranted. An order imposing sanctions cannot go further than is necessary to accomplish the purpose of discovery. Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615.

Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting from the lack of information. Midwife v. Bernal (1988) 203 Cal. App. 3d 57, 64.

The court tailors the sanction to accomplish the discovery sought, and should not exceed that which is required to protect the interests of the party entitled to discovery. Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35.

There are two prerequisites for the imposition of discovery sanction, there must be failure to comply, and that failure must be willful.

You

Defendants’ Motion for an Order Imposing Issue/Evidentiary and Monetary Sanctions of $6,145.00 against Plaintiffs, filed on 7/31/18 is GRANTED, in part.

On 7/10/18, the court granted Defendants’ motion to compel Plaintiffs to appear for their mental examinations. The motion specifically set forth in the notice that the mental examinations were set for 7/17/18 for both Plaintiffs as required by Cal Code Civil Procedure § 2032.310, which requires the motion to set forth “time, place, manner, conditions, scope and nature of the examinations … .” Cal Code Civil Procedure § 2032.310(b).

On 7/12/18, Plaintiffs’ counsel advised by letter that neither Plaintiff would be available on those dates. Motion, Ex. F. Plaintiffs further maintained that the examinations were unnecessary. Motion, Ex. G.

Defendant’s counsel emailed Plaintiff’s counsel on 7/12/18 at 10:50 a.m. that the dates could not be moved, but if Plaintiffs wished to cancel they could do so by the next business day and sign a stipulation (presumably to waive emotional distress claims over and above that normally associated with the physical injuries suffered pursuant to Cal Code Civil Procedure § 2032.320). Opposition, Ex. A.

Apparently, Plaintiffs did not cancel the examinations or sign the required stipulations, and still maintained, according to their objection, that by submitting their own psychological evaluation, further mental examinations were unnecessary. Motion, Ex. G.

This position was unreasonable given the court’s order.

Under the circumstances, an issue/evidentiary sanction is not warranted. An order imposing sanctions cannot go further than is necessary to accomplish the purpose of discovery. Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615.

Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting from the lack of information. Midwife v. Bernal (1988) 203 Cal. App. 3d 57, 64.

The court tailors the sanction to accomplish the discovery sought, and should not exceed that which is required to protect the interests of the party entitled to discovery. Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35.

There are two prerequisites for the imposition of discovery sanction, there must be failure to comply, and that failure must be willful. Young v. Rosenthal (1989) 212 Cal. App. 3d 96, 114.

While Plaintiffs unreasonably failed to appear for the 7/17/18 examinations, Defendants have since served notice for the examinations to take place on 8/8/18 and 8/13/18. Motion, Ex. L. Plaintiff Manvel Khachatryan’s examination is confirmed for 8/13/18, and therefore, Manvel is not willfully refusing to appear. Plaintiff’s Ex. B.

In Reply, Defendants state that a trial continuance has been obtained, but Plaintiff Margaryan did not appear for her examination and does not offer continued dates. Accordingly, Plaintiff, Kajik Margaryan, is ordered to appear for her examination as duly noticed by Defendants without further objection.

The court imposes monetary sanctions of $3,520.00 against Plaintiffs for their unreasonable failure to comply with the court’s order to appear for their examinations, which is an abuse of the discovery process. Cal Code Civil Procedure § 2023.010; Cal Code Civil Procedure § 2023.030(a).

Moving party is ordered to give notice.

ng v. Rosenthal (1989) 212 Cal. App. 3d 96, 114.

While Plaintiffs unreasonably failed to appear for the 7/17/18 examinations, Defendants have since served notice for the examinations to take place on 8/8/18 and 8/13/18. Motion, Ex. L. Plaintiff Manvel Khachatryan’s examination is confirmed for 8/13/18, and therefore, Manvel is not willfully refusing to appear. Plaintiff’s Ex. B.

In Reply, Defendants state that a trial continuance has been obtained, but Plaintiff Margaryan did not appear for her examination and does not offer continued dates. Accordingly, Plaintiff, Kajik Margaryan, is ordered to appear for her examination as duly noticed by Defendants without further objection.

The court imposes monetary sanctions of $3,520.00 against Plaintiffs for their unreasonable failure to comply with the court’s order to appear for their examinations, which is an abuse of the discovery process. Cal Code Civil Procedure § 2023.010; Cal Code Civil Procedure § 2023.030(a).

Moving party is ordered to give notice.