Carrie Lombardi v. Cynthia Lomonaco
Case No: 17CV04666
Hearing Date: Mon Mar 25, 2019 9:30

Nature of Proceedings: Motion for Monetary and Issue Sanctions

# 17CV04666 Carrie Lombardi v. Cynthia Lomonaco

Hearing Date: 3/25/19

MATTER: Motion for monetary and issue sanctions

ATTORNEYS:

John Sheehan / Arthur Petrousian of The Barnes Firm for Carrie Lombardi

Justin H. Sanders / Shawn P. Thomas of Sanders Roberts LLP for Cynthia Lomonaco

TENTATIVE RULING: The motion for monetary sanctions is granted, and plaintiff is ordered to pay to defendant the amount of $5,325. The motion for issue or evidence sanctions is denied, based upon the motion’s failure to include the mandatory separate statement required by California Rules of Court, rule 1.345(a)(7) for such motions.

The Court issues a further order compelling plaintiff to appear for the continued deposition and the IME, as outlined below, and cautions her that if she fails to appear for either the continued deposition or the IME, the Court will entertain a motion by defendant for terminating sanctions on both the complaint and cross-complaint.

Background: This action arises from an automobile accident which occurred on July 19, 2017, between vehicles operated by plaintiff Carrie Lombardi and defendant Cynthia Lomonaco. Plaintiff’s complaint for motor vehicle negligence and negligence was filed on October 17, 2017. After defendant discovered that plaintiff had a history of unpredictable seizures and had been advised by her neurologist not to drive, defendant was granted leave to file a cross-complaint for negligence against plaintiff.

In October, 2018, defendant filed a motion to compel plaintiff to provide further responses at deposition and to compel plaintiff to appear at an independent medical examination (IME). That motion was granted by the court at an ex parte hearing held on October 25, 2018.

In response to the Court’s directive at the October 25 hearing, defendant made extensive efforts to accommodate plaintiff in the scheduling of the continued deposition and the IME, in order to minimize the inconvenience to plaintiff. Ultimately, the parties agreed that both the deposition and IME would be conducted on Monday, February 18, 2019, in spite of the fact that the date was a federal holiday when defense counsel’s office would otherwise be closed.

On Friday, February 15, 2019, however, plaintiff’s counsel informed defense counsel by e-mail that plaintiff would not be attending the deposition or IME, but provided no reason or explanation why she would not attend. Defense counsel advised that plaintiff needed to honor the agreed-upon date, because the doctor would be unlikely to be available again prior to the close of discovery or the trial date (then set for April 8, 2019), and that the abrupt cancellation one day prior to the scheduled deposition and IME did not give defendant sufficient time to seek relief from the Court.

Plaintiff did not appear at either the deposition or the IME on February 18, 2019. Defendant obtained a certificate of non-appearance from the court reporter, and incurred a court reporter fee of $225. Defendant also incurred a $1,500 cancellation fee from the physician scheduled to conduct the IME, and determined that he had no further availability before the close of discovery on March 9, 2019.

The trial date was recently continued from April 8, 2019 to June 10, 2019.

Motion: Defendant seeks imposition of monetary, issue, and evidence sanctions, based upon plaintiff’s failure to appear for her deposition and the IME. Defendant contends that she has been irreparably prejudiced since her medical expert will not be available to conduct a medical examination of plaintiff before the March 8 discovery cutoff.

Defendant seeks imposition of monetary sanctions pursuant to Code of Civil Procedure section 2025.450(g), including the attorneys’ fees incurred because of plaintiff’s conduct, and the fees incurred because of the cancellation, charged by the physician and the court reporter.

Defendant also seeks imposition of issue and evidence sanctions pursuant to Code of Civil Procedure sections 2023.030(b), 2023.030(c), and 2025.450(h). She suggests that the court find that had plaintiff attended her IME, the physician would have determined that she had no injuries or that her injuries were not injured to a degree and/or in a nature consistent with the accident that is the subject of the litigation, and should prohibit plaintiff rom introducing evidence or eliciting testimony to the contrary. Defendant further suggests that an adverse inference should be made against plaintiff that had she attended the second session of her deposition, she would have testified that she was suffering from seizures on the day the accident occurred, and should be prohibited from introducing or eliciting testimony or evidence to the contrary.

Plaintiff has not filed opposition to the motion.

ANALYSIS: The Court will grant in part and deny in part the motion for sanctions, with monetary sanctions granted in the total amount of $5,325, payable by plaintiff, and denied with respect to the request for issue or evidence sanctions. The Court will issue a further order compelling plaintiff to submit to a second session of the deposition and to the IME, on such date as the physician is available to conduct the deposition, even if it is beyond the normal discovery cut-off date for the new June 10, 2019 trial date.

The motion is granted to the extent it seeks monetary sanctions pursuant to Code of Civil Procedure section 2025.450(g). The Court will order plaintiff to pay to defendant the total amount of $5,325, consisting of $3600 in attorneys’ fees incurred because of plaintiff’s conduct in failing to attend the deposition and IME, the physician’s $1,500 cancellation fee, and the $225 fee incurred by defendant for the court reporter. Those amounts are payable forthwith. The Court notes that the notice of motion did not seek imposition of monetary sanctions against plaintiff’s counsel, and the sanctions are therefore not being awarded against counsel.

The motion for sanctions must necessarily be denied to the extent it seeks issue or evidence sanctions pursuant to Code of Civil Procedure section 2025.450(h) and 2023.030(b) and (c), because motions for issue or evidence sanctions must be accompanied by a separate statement, and defendant’s motion failed to include one. (Cal. Rules of Court, rule 3.1345, subd. (a)(7).)

Plaintiff has offered no excuse or explanation for her failure to appear on February 18, 2019, and this Court can only conclude that she willfully violated the Court’s order compelling that appearance. It is for this reason that the Court is reissuing the order compelling her appearance at a continued deposition and IME, under the terms set forth above.

If plaintiff fails to agree to an appearance date of May 28, 2019, or earlier, upon which the continued deposition or IME will be conducted, or fails to actually appear for either the continued deposition or the IME, the Court will entertain a motion by defendant for imposition of terminating sanctions, in the form of: (a) the dismissal of plaintiff’s complaint against defendant, and (b) an order striking any response that plaintiff may file to the cross-complaint (the time within which she must respond to the cross-complaint has not yet expired, and court records do not show that any response has been filed) or precluding her from filing any response, and entering her default on the cross-complaint, along with further monetary sanctions compensating defendant for any expenses incurred as a result of plaintiff’s conduct.