Case Number: BC635084 Hearing Date: February 13, 2019 Dept: 2

Motion by Defendant, Stanley Botvinick to Continue the Trial Date and Reset all Related Cutoff Dates Based on the New Trial Date

Motion by Defendant, Stanley Botvinick to Continue the Trial Date and Reset all Related Cutoff Dates Based on the New Trial Date, filed on 1/18/19, is DENIED.

Defendant has not shown an “excused inability” to conduct discovery or diligence in completing discovery before the cutoff period. Cal Rules of Court 3.1332.

The trial has already been twice continued for a period of 10 months. Defense counsel concedes that he finally completed Plaintiff’s deposition on 7/2/18. Counsel does not explain why Plaintiff’s medical examination could not be completed before discovery cutoff. Declaration of John Doherty, ¶ 4.

Plaintiff testified at his deposition on 7/2/18 that he returned his vehicle to the dealership. Opposition, Ex. D. Defense counsel declares he was advised on 6/13/18 that the vehicle was returned to the dealership. Declaration of John Doherty, ¶ 8. Defendant does not describe what efforts were made to locate the car in the ensuing seven months before discovery cutoff only that Defendant’s expert recently located the vehicle. Id., ¶ 8.

Plaintiff has demonstrated that prejudice will result from a third continuance since Plaintiff’s experts have committed to the current trial date and may not be available if the trial is continued. Opposition, 5:16-18.

Motion by Defendant, Stanley Botvinick for an Order Compelling Plaintiff to Appear for an Independent Medical Examination

Motion by Defendant, Stanley Botvinick for an Order Compelling Plaintiff to Appear for an Independent Medical Examination; Request for Sanctions, filed on 2/4/19, is DENIED.

Any party may obtain discovery by way of a physical examination. Cal. Code Civil Procedure § 2032.240. The parties are entitled to complete discovery proceedings on or before the 30th day before trial. Cal Code Civil Procedure § 2024.020. Physical examinations are discovery proceedings. Cal. Code Civil Procedure § 2019.010. Section 2032.240 permits “discovery” by way of physical examinations.

On 7/24/18, the Court GRANTED Defendant’s ex parte application to continue trial to 2/25/19, with all discovery, expert and motion cut-off dates to be based on the new trial date. Accordingly, discovery cutoff occurred on 1/28/19. Defendant’s demanded that Plaintiff appear for a physical examination on 2/7/19. Motion, Ex. B. That is beyond the discovery cutoff date.

Plaintiff is entitled to imposition of sanctions for having to oppose Defendant’s unsuccessful motion to compel compliance with a demand for physical examination. Plaintiff’s objection to the demand is meritorious.

The court imposes sanctions of $750 on Defendant, Stanley Botvinick, and his counsel of record, Doherty & Catlow. Cal. Code Civil Procedure § 2032.250(b). Such sanctions are payable within thirty (30) days.

Moving party is ordered to give notice.