Case Number: BC667570 Hearing Date: February 14, 2019 Dept: 2

Plaintiff, David Asch’s Motion for Relief and for an Order to Vacate the Court’s 12/14/2018 Ruling Imposing Issue Sanctions Pursuant to Cal. Code Civil Procedure § 473(b), filed on 2/6/18, is DENIED.

Plaintiff’s request for mandatory relief under Cal Code Civil Procedure § 473(b) is DENIED. Mandatory relief based on attorney mistake may be granted for a “resulting default,” or “resulting default judgment or dismissal” entered because of an attorney’s mistake. Cal Code Civil Procedure § 473(b).

There is no dismissal or default judgment at issue. On 12/14/18, the Court GRANTED Defendants’ motion to impose issue sanctions against Plaintiff David Asch. Plaintiff seeks relief from that order.

The purpose of mandatory relief is to alleviate the hardship on parties who lose their day in Court “due solely to an inexcusable failure to act on the part of their attorneys.” Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226.

Here, Plaintiff’s counsel opposed the Defendants’ Motion for Terminating and Issue Sanctions but ultimately did not show substantial justification for failing to proceed with the IME.

Plaintiff’s request for discretionary relief under Cal. Code Civil Procedure § 473(b) is DENIED.

Plaintiff’s counsel has not shown mistake or excusable neglect. Plaintiff’s counsel, Lisa Saperstein, states she mistakenly concluded that a medical historian was not permitted during an examination. Declaration of Lisa Saperstein, ¶ 15.

However, as the Court determined in its ruling granting Defendants’ motion to impose issue sanctions, Defendants’ Notice of IME clearly advised Plaintiff that the examination would consist of taking a history. Plaintiff did not object to the notice of demand based on a claim that no other personnel would be involved. Plaintiff did not move for a protective order.

Ms. Saperstein states that she instructed Mr. Asch to leave the medical examination although he was willing to stay. Saperstein declaration, ¶ 17-18.

The medical historian, Marion Dillon, declares that Mr. Asch refused to answer any questions and declined to state what part of his body was to be examined, which was necessary to determine whether Plaintiff needed to wear a gown. Dillon declaration, ¶ 5-6. Plaintiff declined to change into a gown, he refused to answer any questions about history, and that he would only give his history “if Dr. Klapper was present.” Id, ¶ 10.Mr. Asch stated his preference was that all information be taken from his medical records. Id. ¶ 12.

The evidence supports Defendants’ contention that Plaintiff did not want to proceed with the examination, or give any history to anyone, notwithstanding any advice from Ms. Saperstein, since Mr. Rosenberg, who accompanied Plaintiff to the examination, did not call Ms. Saperstein until after these events took place. Declaration of Rosenberg, ¶ 11.

A “mistake” occurs “when a person, under some erroneous conviction of law or fact, does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted.” Salazar v. Steelman (1937) 22 Cal. App. 2d 402, 410.

Ms. Saperstein’s interpretation of statute that a medical historian is not allowed is not reasonable. She admits the statute at issue does not expressly discuss the presence of a medical historian. Saperstein declaration, ¶ 15. Her conclusion that the presence of a historian violates Plaintiff’s privacy is also unreasonable given well-established law that Plaintiff waives privacy with regard to any injury tendered in the litigation. Vinson v. Superior Court, 43 Cal.3d 833, 839 (1987).

The evidence does not persuasively establish that the Plaintiff’s failure to proceed with the examination, resulting in issue sanctions, was caused by counsel’s mistake or excusable neglect.

Moving party is ordered to give notice.