Case Number: BC604075 Hearing Date: May 25, 2018 Dept: 4

MOVING PARTY: Defendants Joanne Ruth Sellar and Ocho Films, Inc.

RESPONDING PARTY: None

Motion to Compel Plaintiff’s Responses to Request for Admissions, Set One, Demand for Production of Documents, Set Two, Special Interrogatories, Set Three, Supplemental Interrogatories, Set One, and Supplemental Demand for Production of Documents, Set One

The court considered the moving papers.

BACKGROUND

On December 16, 2015, plaintiff Heidi Lainez filed a complaint against defendants Joanne Ruth Sellar and Ocho Films Inc. for motor vehicle negligence.

Trial is set for July 17, 2018.

LEGAL STANDARD

Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP § 2030.290(b). The statute contains no time limit for a motion to compel where no

responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.

Request for Production of Documents

Where there has been no timely response to a CCP § 2031.010 demand, the demanding party must seek an order compelling a response. CCP § 2031.300. Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of “good cause” is required. Weil & Brown, Civil Procedure Before Trial, ¶ 8:1487.

Request for Admissions

Pursuant to CCP § 2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under § 2023.010 et seq.” Weil & Brown, Civ. Proc. Before Trial, ¶ 8:1370, citing CCP § 2033.280(b). The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP § 2033.280(c).

DISCUSSION

Defendants request that the court compel plaintiff to serve responses to defendant’s (1) Request for Admissions, Set One, (2) Demand for Inspection and Production of Documents and Tangible Items, Set Two, (3) Special Interrogatories, Set Three, (4) Supplemental Interrogatories, Set One, and (5) Supplemental Demand for Inspection and Production of Documents and Tangible Things, Set One, served on February 7, 2018. Responses were due on March 14, 2018. To date, defense counsel has not received responses.

Because defendants properly served their discovery requests and plaintiff failed to serve responses, the motions are GRANTED.

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP §§ 2030.290(c); 2031.300(c).

It is mandatory that the court impose a monetary sanction on the party or attorney whose failure to serve a timely response to requests for admission necessitated a motion to deem them admitted. CCP § 2033.280(c).

Cal. Rules of Court, Rule 3.1348(a) states, “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Defendants request monetary sanctions in the amount of $1,170 against plaintiff and her attorney of record. The court finds $670 ($185/hr. x 2 hrs. plus $300 in filing fees) to be a reasonable amount to be imposed against plaintiff and her attorney of record, Ramin Soofer, Esq.

The court ORDERS:

Plaintiff Heidi Lainez is ordered to serve on defendants verified responses without objections to defendants’ Request for Admissions, Set One, Special Interrogatories, Set Three and Supplemental Interrogatories, Set One, within 15 days.

Plaintiff Heidi Lainez is ordered (1) to serve on defendants a verified response without objections to defendants’ Demand for Inspection and Production of Documents and Tangible Items, Set Two and Supplemental Demand for Inspection and Production of Documents and Tangible Items, Set One, and (2) to produce all documents and things in her possession, custody, or control, which are responsive to defendants’ demands, within 15 days.

Plaintiff Lainez and her attorney of record, Ramin Soofer, Esq., are ordered to pay a monetary sanction to defendants in the amount of $680 within 30 days.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: May 24, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court

MOVING PARTY: Defendants Joanne Ruth Sellar and Ocho Films, Inc.

RESPONDING PARTY: Plaintiff Heidi Lainez

Motion to Seek Leave for Mental Examination

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

BACKGROUND

On December 16, 2015, plaintiff Heidi Lainez filed a complaint against defendants Joanne Ruth Sellar and Ocho Films Inc. for motor vehicle negligence.

Trial is set for July 17, 2018.

DISCUSSION

Defendants request an order for leave to obtain a mental examination of plaintiff, on May 28, 2018, at 10:00 a.m. or May 31, 2018, at 10:00 a.m. with John T. Dunn, Ph.D. at one of three locations in Los Angeles County.

“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.

CCP § 2032.020 states: “(a) Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or other person is in controversy in the action. . . . (c) A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.”

CCP § 2032.310(a) states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

CCP § 2032.320 states in part: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical or mental 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. (e) If the place of examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: (1) The court determines that there is good cause for the travel involved. (2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”

Defendants argues that they have good cause to obtain a mental examination of plaintiff. They explain that in light of the examination of plaintiff by plaintiff’s treating neurologist, Ronald Fisk, M.D., defendants noticed a physical examination by neurologist Jeffrey Bounds, M.D., which was conducted on July 13, 2017. On February 22, 2018, plaintiff served her exchange of expert witness information, identifying retained neuropsychologist David Wellisch, Ph.D. On March 14, 2018, defendants served a Supplemental Expert Exchange, identifying neuropsychologist, John T. Dunn, Ph.D.

Further, defendants assert, plaintiff is claiming traumatic brain injury symptoms, such as headaches, nose bleeds, dizziness, altered behavior, difficulty sleeping, forgetfulness, tinnitus, impaired hearing and vision, diminished sense of taste and smell, difficulty concentrating, impaired memory, and urinary and fecal incontinence. Also, defendants contends, plaintiff has increased her settlement demand significantly and has not provided any records regarding assessments by plaintiff’s neuropsychologist. Defendants present the declaration of Dr. Dunn who has determined based on his initial review of plaintiff’s medical records, a comprehensive neuropsychological evaluation is indicated and warranted to fully evaluate the psychological and cognitive effects of the claimed traumatic brain injury.

In opposition, plaintiff argues that because defendants contend that plaintiff has no brain injury and no cognitive defect, there is no need for future cognitive testing or a cognitive program, as stated by defendants’ expert Dr. Bounds. Plaintiff contends that the exam will result in duplicative, cumulative, and redundant testimony. Plaintiff also contends that defendants have not shown good cause to have the location of the examination more than 75 miles from plaintiff’s residence. Plaintiff asserts that if the court is inclined to allow the mental examination, then certain limitations should be imposed.

In reply, defendants reiterate that they have good cause. They also represent that they agree to meet all conditions that are ordered by the court or required by code. Further, they point out that they were unaware that plaintiff resides in Riverside County because plaintiff has not responded to defendants’ supplemental discovery requests, and that her last address was in Los Angeles County.

The court finds that defendants have shown good cause. Plaintiff has placed her mental condition in controversy. Defendants have complied with CCP §§ 2032.310 and 2032.320. Defendants have not shown good cause for plaintiff to travel more than 75 miles from her residence.

The court ORDERS:

Plaintiff is ordered to appear for an independent mental examination on May 28, 2018, at 10:00 a.m. or May 31, 2018, at 10:00 a.m. at a location within 75 miles of plaintiff’s residence.

The examination will be conducted for the purpose of determining the origin, nature, and severity of plaintiff’s alleged difficulties/impairment.

The examination will include a clinical interview, which may consist of questions relating to the nature and extent of the injuries alleged to have been sustained in the accident that is the subject matter of this action; present symptoms and conditions; medical history, including the manner in which the alleged injuries were incurred; prior physical, mental, and emotion injuries and diseases, and treatment received for said injuries and diseases; and plaintiff’s occupational and social history.

Plaintiff is to submit to a battery of neuropsychological tests. Tests that may be administered include but is not limited to WAIS-IV, WMS-IV, MMPI-2-RF, SIMS, Beck Depression Inventory-II, Beck Anxiety Inventory, Rey 15-Item Test, Rey Auditory Verbal Learning Test, Rey Complex Figure Test, Advanced Clinical Solutions, TOMM, VSVT, Category Test, Wisconsin Card Sorting Test, Finger Tapping Test, Grooved Pegboard Test, Trail Making Test, BRIEF-A, Neuropsychological Impairment Scale, WRAT4, or PPVT4

The examination will not include any diagnostic test or procedure that is unduly protracted, painful, intrusive, or otherwise endangers the health or life of plaintiff.

Testing shall be limited to not more than five hours, excluding breaks and lunch.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: May 25, 2018

____________________________

Dennis J. Landin

Judge of the Superior Court