Case Name: Kei Jung Ning, et al. v. Fire Insurance Exchange, et al.
Case No.: 2015-1-CV-277603

This is an insurance case. Plaintiffs Kei Jung Ning and Li Juan Liu (collectively, “Plaintiffs”) own a home located at 20409 Via Palamos in Cupertino, California. (Second Amended Complaint [“SAC”] at ¶ 1.) Plaintiffs were insured under a written policy of insurance (“Policy”) issued by, through and/or on behalf of defendant Fire Insurance Exchange (“Defendant”) for the real and personal property owned by Plaintiffs. (Ibid.) Plaintiffs allege that this Policy was in full force and effect when Plaintiffs’ residence and personal property were damaged or destroyed by two separate water losses. (Id. at ¶ 2.) The first loss occurred on September 11, 2010 and the other loss occurred on September 18, 2011. (Ibid.) Plaintiffs allege that the damage caused by the two water losses giving rise to Plaintiffs’ claims is covered under the Policy. (Id. at ¶ 13.)

The initial Complaint in this matter was filed by Plaintiffs, representing themselves, more than four and half years ago on March 3, 2015. A First Amended Complaint was then filed on June 25, 2015. On November 1, 2016 the matter was assigned an initial trial date of April 10, 2017. This initial trial date was vacated by the Court (Hon. Arand) on February 28, 2017. On March 16, 2017 Plaintiffs’ first retained counsel, Louis Abronson, entered the case. He represented Plaintiffs until June 14, 2017, when he withdrew and Plaintiffs resumed self-representation. On August 8, 2017 Plaintiffs’ second retained counsel, Joel Westbrook, substituted into the case. On Plaintiffs’ behalf Mr. Westbrook brought a motion for leave to file the SAC. This motion was unopposed and was granted by the Court (Hon. Arand) on December 11, 2017. The SAC, which remains the operative pleading, was filed December 18, 2017. The SAC states two causes of action: breach of contract (the insurance policy), and breach of the implied covenant of good faith and fair dealing (insurance bad faith). Defendant brought a motion to strike potions of the SAC which was denied by the Court (Hon. Arand) on April 10, 2018. At a trial setting conference that same day the matter was given its second trial date of October 22, 2018.

Mr. Westbrook later withdrew as Plaintiffs’ counsel and Plaintiffs resumed representing themselves on June 7, 2018. On June 19, 2018 Plaintiffs’ third counsel, Christian Haffner, began representing them. Plaintiffs made an ex parte application to continue trial which was denied by the Court on July 16, 2018. Mr. Haffner then withdrew on July 23, 2018 and Plaintiffs were once again self-represented. On September 18, 2018 Plaintiffs made an ex parte application for protective order and to continue the trial. The Court (Hon. Arand) denied the request for protective order but vacated the October 22, 2018 trial date.

On January 15, 2019 the matter was assigned its third trial date, June 3, 2019. On February 26, 2019 Plaintiffs brought their first motion to reopen discovery which was, with one specific exception, denied by the Court (Hon. Arand) on March 28, 2019. The Court’s April 18, 2029 formal order on the motion stated in pertinent part that each Plaintiff could designate one expert witness to testify as to the medical conditions and one expert witness to testify as to the psychiatric conditions that Plaintiffs allege they are suffering from due to defendants’ actions. The order stated that the “motion to reopen discovery is DENIED in all respects not otherwise stated in this Order.”

On May 29, 2019 this Court granted Defendant’s motion to conduct psychiatric and/or psychological independent medical examinations (IMEs) of both Plaintiffs, as they were now being permitted to add experts to testify as to their claimed psychiatric/emotional injuries. The IMEs were to be conducted by Ralph Kiernan, M.D., with the examination of Plaintiff Kei Jung Ning to take place on June 17, 2019 at 12:00 p.m. and the examination of Plaintiff Li Juan Liu to take place on June 24, 2019 at 12:00 p.m. Among other things the Court’s formal order signed June 6 and filed June 11, 2019 clearly stated in paragraph 6: “If for any reason a Plaintiff cannot attend her examination as ordered herein due to a claimed health-related issue, that Plaintiff must provide a written document signed by a licensed medical provider so attesting. Such written attestation must be given and delivered to counsel for Fire no later than three days prior to the scheduled examination.” At the settlement conference later that same day, this Court continued the trial date from June 3, 2019 to September 23, 2019—the fourth trial date set in this action.

The IME of Plaintiff Kei Jung Ning took place on June 17, 2019. Plaintiffs attempted to cancel the June 24, 2019 IME of Plaintiff Li Juan Liu without complying with paragraph 6 of the Court’s order and appeared late for the examination. The IME then apparently degenerated into a physical confrontation between Plaintiff Ning and Dr. Kiernan after Dr. Kiernan determined that Plaintiff Liu’s examination could not be performed that day. Plaintiffs and Dr. Kiernan both refuse to complete the IME.

On July 16, 2019 this Court heard two matters: 1) Defendant’s motion to dismiss the action for delay in prosecution; and 2) another ex parte application by Plaintiffs to continue trial and reopen discovery. The Court denied the motion to dismiss without prejudice and granted Plaintiffs’ ex parte application only in part—by vacating the September 23, 2019 trial date and scheduling a trial setting conference for August 6, 2019. At the August 6, 2019 trial setting conference, where Plaintiffs appeared without counsel but stated they were now represented by Gregory Yu, the Court set the matter for trial on January 21, 2020, which remains the trial date at this time. This is the fifth trial date that has been set in this action. Gregory Yu, Plaintiffs’ current counsel (their fourth), did not formally substitute into the case until August 20, 2019.

Currently before the Court are three motions: 1) Defendant’s motion for monetary sanctions, evidence/issue sanctions, and/or terminating sanctions (timely filed on September 9, 2019) based on what Defendant characterizes as Plaintiffs’ deliberate noncompliance with this Court’s order regarding IMEs and it’s expectation that Plaintiffs will intentionally thwart any further effort to conduct an independent medical evaluation of their claimed emotional or psychiatric damages prior to trial; 2) Plaintiffs’ motion to reopen discovery and to appoint a discovery referee (late filed on September 10, 2019, and; 3) Plaintiffs’ motion for a protective order “regarding the continuance of the independent medical evaluation (IME) of Plaintiff Liu” (late filed on September 10, 2019). As an initial matter the Court has exercised its discretion to consider Plaintiffs’ late-filed motions and late-filed evidence in support of their motions.

1. Plaintiffs’ motion to reopen discovery and appoint discovery referee
Plaintiffs’ motion to reopen discovery and to appoint a discovery referee of their choosing, with costs to be borne by Defendant, is DENIED.

Code of Civil Procedure (“CCP”) § 2024.050 states, in relevant part:

(a) 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 under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (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. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. Emphasis added.

Plaintiffs’ counsel argues that discovery must be reopened above and beyond the relief Plaintiffs were already granted in the Court’s April 18, 2019 order because Plaintiffs now seek to add four more experts in addition to those they were previously allowed. Plaintiffs assert that this is necessary “to assist in trial preparation to present critical evidence otherwise Plaintiffs will be prejudiced irreversibly and interest of justice will be damaged significantly.” (Motion at p.5:28-6:2.) The Court finds that this explanation does not adequately address the “necessity and the reasons for the discovery.”

More importantly the Court finds that Plaintiffs have lacked diligence in seeking this discovery and bringing this motion. As Defendant points out, in the more than four years since this litigation began, Plaintiffs’ only discovery efforts have been to propound requests for production of documents in July 2015 and form interrogatories and requests for production of documents in June 2018. On both occasions Defendant responded and no motions to compel further responses were filed.

Plaintiffs’ counsel asserts that any lack of diligence is excused by Plaintiffs being self-represented for much of this litigation. “Since June 2018, due to their concurrent health crises, well before and after the discovery cut-off dates and those deadlines to conduct said discovery, both plaintiffs had lacked any meaningful capacity to perform, comply with and complete essential discovery for their claims and for opposing defenses raised by defendant.” (Motion at p. 4:28-5:3.) Not only does the record in this case not support the conclusion that Plaintiffs were unable to bring applications and motions while self-represented, it is well-settled that there are not separate standards for self-represented litigants. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [“A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.”])

The request for a discovery referee is also DENIED. “When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee … [w]hen the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (CCP §639(a)(5).) “Unless both parties have agreed to a reference, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These include: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.” (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105.) Plaintiffs contend a discovery referee is necessary “to evaluate the nature, purpose and justification for additional expert disclosures and depositions.” (Motion at p. 5:25-27.) As the Court does not find it appropriate to reopen discovery to allow the proposed additional experts, no referee is needed to evaluate such discovery.

2. Defendant’s motion for terminating, evidence/issue and monetary sanctions
Defendant’s motion for sanctions is GRANTED in part and DENIED in part as follows.

Defendant’s request for monetary sanctions is GRANTED in part as follows. The Court directs Defense Counsel to submit a declaration detailing the fees and costs incurred by Defendant in association with the June 24, 2019 IME of Plaintiff Li Juan Liu that could not be completed (as the June 17, 2019 IME was completed without incident the Court will not order monetary sanctions for that IME, even though the exam will have to be redone). The Court will review this declaration and, if it finds the amounts reasonable, order monetary sanctions against Plaintiffs in that amount. The monetary sanctions will be imposed against Plaintiffs only, as Mr. Yu had not yet substituted into the case as Plaintiffs’ counsel on June 24, 2019.

Defendant’s motion for terminating sections is DENIED. The sanctions imposed by a Court must be tailored to “fit the crime.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.) “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” (Laguna Auto Body v. Superior Court (1991) 231 Cal.App.3d 481, 490 [citing Motown Records Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489], emphasis added.)

Dismissing Plaintiffs’ entire case in response to their failure to complete the Court ordered IMEs and their attempt to cancel the June 24, 2019 IME in violation of paragraph 6 of this Court’s order would—currently—be more of a punishment than a means of allowing Defendant to obtain the discovery (IMEs) the Court has already determined Defendant is entitled to.

What remains is the question of issue and/or evidentiary sanctions. Defendant seeks issue sanctions “determining Plaintiffs’ claims for psychiatric harm, emotional distress, and other noneconomic damages adversely to them (e.g., precluding, striking, or dismissing such claims entirely), or alternatively evidence sanctions precluding Plaintiffs from introducing evidence to support those claims . . .” (Defendant’s supporting memorandum at p. 9:13-16.)

The Court intends to continue this part of the motion for later determination at a hearing closer to the January 21, 2020 trial date. It is the view of the Court that Plaintiffs cannot seek noneconomic damages at trial unless and until the court-ordered IMEs take place and are completed to the satisfaction of the examining physician. It is also the view of the Court that there is still sufficient time remaining before trial (and before the settlement conference) for this to happen. As Plaintiffs and Dr. Kiernan both refuse to have further contact with each other (regardless of what actually took place on June 24, 2019) a third physician will have to perform IMEs of both plaintiffs. While the Court understands Defendant’s frustration with the prospect of having to select yet another qualified physician for this purpose, it is the view of the Court that the requested evidentiary sanction should not be imposed before requiring Defendant to make a good-faith effort at selecting another physician and completing the IMEs in the time remaining.

The Court expects counsel for both sides to work together in a professional manner to try to accomplish this.

3. Plaintiffs’ motion for protective order
Plaintiffs’ motion for a protective order “regarding the continuance of the independent medical examination (IME) of Plaintiff Liu,” (Notice of Motion at p. 1:24) is DENIED. The Court notes that the motion is moot as it is premised on the expectation that Defendant would move to compel Plaintiff Liu to complete an examination with Dr. Kiernan (who has stated in a declaration that he will not see Plaintiffs again). Plaintiffs’ request for sanctions against Defendant, based on the argument that “[n]o possible grounds for bringing a motion to compel lie here,” (Motion at p.8:1-2) is also DENIED.

As noted above the Court expects the parties to make a good faith attempt at rescheduling IMEs of both Plaintiffs with another qualified physician to be selected by Defendant (which eliminates the need for a protective order requiring Defendant to choose another physician). The Court does not see any utility in imposing any further conditions on how that physician may conduct his/her examination of Plaintiffs at this time.

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