Case Number: BC661233 Hearing Date: June 06, 2018 Dept: 4

MOVING PARTY: Defendants LA County MTA and Raymond Vargas Jamarillo

RESPONDING PARTY: Plaintiff David Sarabia Ortiz

Motion to Compel Deposition of Plaintiff or, Alternatively, Continue the Trial Date

Motion to Compel Compliance with Demand for Initial Physical Examination of Personal Injury

The court considered the moving, opposition, and reply papers.

BACKGROUND

On May 12, 2017, plaintiff David Sarabia Ortiz filed a complaint against defendants LA County MTA, City of Los Angeles, County of Los Angeles, and Raymond Vargas Jaramillo for motor vehicle negligence and public entity liability based on an incident that occurred on June 28, 2016.

Trial is set for November 13, 2018.

LEGAL AUTHORITY

CCP §2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, 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 the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

CCP § 2025.450(b) provides, “A motion under subdivision (a) shall comply with both of the following:

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Under CCP section 2032.220(a), “[i]n any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” Under CCP §2032.220(d), an order granting a physical . . . examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”

“As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 258.

DISCUSSION

Defendants request an order compelling plaintiff to appear for his deposition within a week of the hearing on the motion or, alternatively, continuing the trial date. Defendants also request that the court compel plaintiff to appear for his physical examination on June 20, 2018.

Deposition

On April 3, 2018, LA County MTA served a deposition notice on plaintiff, for May 1, 2018. On April 26, 2018, plaintiff served an objection, stating that neither plaintiff’s counsel nor deponent are available on the date unilaterally selected by defendant, and that plaintiff will be provided for deposition only after counsel meet and confer as to a mutually agreeable time, date, and place.

Defendants argue that plaintiff’s objection is defective because it does not point to any “error or irregularity.” Defendants contend that they need to take plaintiff’s deposition well before the expert exchange, which is August 30, 2018. Defendants assert that plaintiff claims substantial injuries in many areas and that until he is deposed defendants will not know the scope and status of the alleged injuries and cannot address his prognosis. Defendants contend that they will then need to retain experts.

In opposition, plaintiff asserts that he will sit for his deposition after the depositions of the driver and passenger of the MTA vehicle are taken, which are scheduled for July 13 and 16, and served on March 28, 2018, before the notice as to plaintiff’s deposition was served. Plaintiff contends that he is available the following week. Plaintiff argues that defendants are attempting to “leapfrog” deposition scheduling. Plaintiff also contends that defense counsel is in possession of over 5000 pages of medical records and thus, defense counsel has sufficient information to retain expert witnesses.

In reply, defendants state that they are willing to moot the scheduling issue “and satisfy Plaintiff’s now openly-stated desires by continuing the trial so Plaintiff can take his depositions and resolve the document issue first.”

“Ordinarily, depositions proceed in whatever order they are noticed by the parties. But questions of priority may arise where a later-served notice sets a deposition before the date set in the first-served notice.” Cal. Practice Guide: Civ. Proc. Before Trial, 8:494.” The Discovery Act does not recognize priority based on notice alone: Unless state or local rules or local uniform written policy provide otherwise, “the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” Id., 8:495. “When another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsel’s agreement.” Id., 8:496.5.

The court finds that plaintiff served deposition notices for depositions to be held in July 2018, before defendant served its deposition notice on plaintiff, and that plaintiff and plaintiff’s counsel are unavailable for deposition in June. Plaintiff has agreed to appear for his deposition in the week after the other depositions are held. The court also finds that a short trial continuance is appropriate.

The motion is therefore GRANTED. Plaintiff is ordered to appear for his deposition during the week of July 23, 2018, at a mutually agreeable date, time, and location. The trial date is continued from November 13, 2018 to January 17, 2019, at 8:30 a.m., in Dept. 4. The Final Status Conference is continued from October 26, 2018 to January 3, 2019, at 10:00 a.m., in Dept. 4. Discovery cut-off (including expert witness exchange) and motion cut-off dates shall be based on the new trial date.

IME

On April 4, 2018, LA County MTA served a demand for plaintiff’s physical examination for May 23, 2018. On April 25, 2018, plaintiff served his Response/Objection. On May 1, 2018, defense counsel sent an email to plaintiff’s counsel providing three dates for which the examiner was available, June 13, 20, and 27. Plaintiff’s counsel responded that he would review his and his client’s calendars. Defendant contends that plaintiff’s counsel did not choose a date.

In opposition, plaintiff contends that he has agreed to appear for an IME on June 20, 2018, subject to certain limitations.

The motion is GRANTED. Plaintiff is ordered to appear for his medical examination on June 20, 2018, as he has agreed. The court declines to impose any limitations not authorized by statute.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 6, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court