Wilson Kong v. London Bridge Resort, LLC, et al.		CASE NO. 112CV221052
DATE: 10 July 2014	TIME: 9:00	LINE NUMBER: 4

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the following motions were argued and submitted: (1) the motion of plaintiff Wilson Kong (“Plaintiff”) for a protective order and an award of monetary sanctions; and (2) the motion of defendant Summer Winter Action Tours, LLC (“SWAT”) for issue, evidence, and monetary sanctions or, in the alternative, a further order compelling Plaintiff’s attendance at an independent medical examination.

SWAT filed a formal opposition to Plaintiff’s motion for protective order, in which it requests monetary sanctions. Plaintiff filed a formal opposition to SWAT’s motion, in which it requests monetary sanctions.

Statement of Facts

This is a personal injury action that arises from an alleged assault at a night club located in Lake Havasu, Arizona, in the spring of 2010. Plaintiff, who was a college student at the time of the incident, traveled to LakeHavasu for spring break as part of a tour group operated by SWAT. On the night of 28 March 2010, Plaintiff went to a night club located at the London Bridge Resort where he was allegedly assaulted by Austin Specht (“Mr. Specht”) and Sean Jenkins (“Mr. Jenkins”). Plaintiff alleges that he was hit in the head by Mr. Specht, causing him to fall to the ground and strike his head on the concrete. As a result of the incident, Plaintiff claims that he sustained severe head injuries, including brain injuries.

On 21 March 2012, Plaintiff filed the operative complaint against defendants SWAT, London Bridge Resort, LLC, Mr. Specht, and Mr. Jenkins, asserting claims for negligence, premises liability, common law dram shop liability, breach of contract, and false promise. Plaintiff seeks general and special damages, including medical expenses incurred as a result of the incident.

Discovery Dispute

On 1 November 2013, SWAT served Plaintiff with a “Demand for Independent Physical and Mental Examination of Wilson Kong.” The demand required Plaintiff to appear at the office of Mark Strassberg, M.D. (“Dr. Strassberg”), a neurologist and psychiatrist, on 6 December 2013 and indicated that Dr. Strassberg would conduct the evaluation with the assistance of psychologist Joanna Berg, Ph.D. (“Dr. Berg”), who would administer the written assessments during the evaluation. The demand also listed 11 assessments that were likely to be performed during the evaluation. Plaintiff’s counsel and SWAT’s counsel met and conferred, and on 18 December 2013, SWAT’s counsel sent Plaintiff’s counsel a proposed amended examination notice. Thereafter, the parties’ counsel continued their meet and confer efforts, but no resolution was reached.

Accordingly, on 10 January 2014, SWAT filed a motion to compel Plaintiff to submit to a neuropsychological examination to by conducted by Dr. Strassberg with the assistance of Dr. Berg, in accordance with its amended notice of examination served on Plaintiff on 18 December 2013. Plaintiff’s counsel filed a formal opposition thereto and the matter was set for hearing on 28 February 2014.

In its 28 February 2014 order, the Court indicated that SWAT moved for an order compelling Plaintiff to appear for an independent medical/mental evaluation in accordance with SWAT’s amended notice of examination served on Plaintiff on 18 December 2013. (RJN, Ex. B, p. 4.)  The Court opined that while SWAT had the right to demand one physical examination of Plaintiff without leave of court, SWAT was required to obtain leave of court for a mental examination. (Id.) Accordingly, the Court construed the motion, with respect to the request to conduct a mental examination, as one for leave of court under Code of Civil Procedure section 2032.310. (RJN, Ex. B, p. 5.) The Court pointed out that SWAT’s amended notice of examination indicated that the examination was to include a medical history, neurologic and psychiatric exams, and psychological testing, and listed the potential tests that were to be administered as part of the psychiatric portion of the examination. (Id.) In addition, Dr. Strassberg submitted a declaration in support of the motion substantiating the need for the requested testing. (Id.)  In light of the foregoing, the Court granted “SWAT’s motion to compel Plaintiff to submit to an independent physical and mental examination.” (Id.)  The Court reiterated its finding on the last page of the 28 February 2014 order, wherein it stated that the “motion to compel Plaintiff to submit to an independent medical/psychiatry, neuropsychological evaluation” was granted, and was to take place within 45 days in a “code-compliant manner.” (RJN, Ex. B, p. 6.)

The same day, Plaintiff’s counsel sent a letter to SWAT’s counsel advising that if the parties were unable to reach a stipulation regarding Plaintiff’s examination, Plaintiff would not be appearing for the same and would seek a writ of mandate directing the Court to vacate its 28 February 2014 order. (See Brust Dec., Ex. H.)

As of late March 2014, Plaintiff had not filed a writ petition. (See Brust Dec., p. 4:3-7.) On 25 March 2014, SWAT’s counsel sent a letter to Plaintiff’s counsel indicating that it appeared that Plaintiff was not going to file for writ of mandate and advising that Dr. Strassberg was now available to perform the examination on several dates in June 2014. (See Brust Dec., Ex. I.)  SWAT’s counsel advised that if he did not receive a response by 28 March 2014, he would unilaterally notice the examination. (Id.)

On 28 March 2014, SWAT issued a notice setting the examination for 2 June 2014. (See Brust Dec., p. 4:11-14, Ex. J.)  The notice of examination issued by SWAT on 28 March 2014, is virtually identical to SWAT’s amended notice of examination that was served on Plaintiff on 18 December 2013. (Id.) The only difference between the two notices is that the 28 March 2014 notice indicates that the examination was to occur on 2 June 2014, at 8:30 AM. (Id.)

The afternoon of 28 March 2014, Plaintiff’s counsel faxed a letter to SWAT’s counsel stating that Plaintiff interpreted the Court’s order that the examination was to take place within 45 days in a “code-compliant manner” to mean that the parties were to meet and confer to reach a stipulated agreement regarding the conditions of the examination. (See Brust Dec., Ex. K.) Plaintiff’s counsel contended that the 28 February 2014 order did not authorize any diagnostic tests or procedures and was for a mental examination only. (Id.) Plaintiff asserted that, during the examination, Dr. Strassberg should not be able to touch Plaintiff or ask him to walk around, and the examination should last no longer than 7 hours. (Id.) Plaintiff’s counsel advised that Plaintiff would be available for the mental examination on two dates in April 2014, and 3 June 2014. (Id.)

From 28 March 2014 to 4 April 2014, SWAT’s counsel and Plaintiff’s counsel met and conferred regarding Plaintiff’s medical examination. (See Brust Dec., p. 4:23-26, Exs. L, M.)  During the meet and confer efforts, Plaintiff’s reiterated his understanding that the Court had ordered a mental examination, not a physical examination, and asserted that SWAT was improperly attempting to incorporate a physical examination into the mental examination. (Id.) Plaintiff’s counsel also asserted that Plaintiff would not undergo the physical examination unless certain conditions were met. (Id.) Conversely, SWAT’s counsel argued that the amended notice of examination served on Plaintiff on 18 December 2013, which was the subject of the Court’s 28 February 2014 order, described an examination that would have both mental and physical aspects and the Court was aware of the same when it granted SWAT’s motion. (Id.) SWAT’s counsel advised that SWAT would file another motion to compel Plaintiff’s attendance at the examination unless Plaintiff agreed to attend the 2 June 2014 examination. (Id.)

On 8 April 2014, Plaintiff’s counsel advised that Plaintiff had agreed to appear for both a physical and mental examination on 2 June 2014. (See Brust Dec., Ex. N.)  However, Plaintiff’s counsel indicated that Plaintiff would not be appearing pursuant to the 28 March 2014 examination notice, but “pursuant to the terms of the Order, as modified by agreement between [SWAT’s counsel’s] office and [his]” office. (Id.) Plaintiff’s counsel then outlined several conditions that he contended should be imposed on the examination. (Id.) On 14 April 2014 and 30 May 2014, Plaintiff’s counsel sent another letter to SWAT’s counsel reiterating various objections to the examination. (See Brust  Dec., Exs. P and Q.)

On 2 June 2014, Plaintiff arrived at Dr. Strassberg’s office at approximately 8:13 AM. (See Kong Opp’n. Dec., p. 1:26-27.) Upon Plaintiff’s arrival, Dr. Strassberg’s staff provided Plaintiff with a “New Patient Registration” form and a “New Patient Neurology Questionnaire.” (See Kong Opp’n. Dec., p. 1:27-28; see also Kong Dec., Exs. 8 and 9.)  Plaintiff’s counsel, David Wessel (“Mr. Wessel”), arrived shortly thereafter at 8:20 AM. (See Wessel Opp’n. Dec., p. 3:22-23.) Mr. Wessel took the questionnaires from Plaintiff and informed Dr. Strassberg’s staff that Plaintiff would not be filling them out. (See Wessel Opp’n. Dec., p. 3:23-25.)

Approximately 30 minutes later, Dr. Strassberg came out into the waiting room and asked Mr. Wessel and Plaintiff to come into his office. (See Wessel Dec., p. 10:4-8.) In his office, Dr. Strassberg advised Plaintiff and Mr. Wessel that he intended to proceed with the mental examination first, followed by the physical examination. (See Wessel Dec., p. 10:8-9.) Mr. Wessel demanded that Dr. Strassberg proceed with the physical examination first because the notice of the examination had mentioned the physical examination first and he was only there to attend the physical examination. (See Wessel Dec., p. 10:10-16; see also Strassberg Dec., p. 2:20-28, 3:1-6.) Dr. Strassberg declined to proceed with the physical examination first and indicated that the mental examination would last approximately 3 hours and should be completed around 11:30 AM. (Id.) Dr. Strassberg advised Mr. Wessel that he could wait in the waiting room or return to his office while the mental examination was being conducted. (Id.) Dr. Strassberg declares, and Mr. Wessel denies, that Mr. Wessel stated that it would be too inconvenient for him to wait in the waiting room as he wished to return to his office as soon as possible. (See Strassberg Dec., p. 2:20-28, 3:1-6.) Dr. Strassberg further declares, and Mr. Wessel denies, that Dr. Strassberg then explained to Mr. Wessel the medical reasons why the mental examination needed to be conducted first.  Specifically, he indicated that the sequence of the examination would allow the examiner to understand the individual’s present complaints and focus the physical exam accordingly, and was used in “all venues whether a clinic, a private office of a hospital setting.” (Id.) Dr. Strassberg also declares, and Mr. Wessel denies, that Mr. Wessel then indicated that he would leave with Plaintiff if the examination did not occur in the order he desired. (Id.)

Dr. Strassberg asked Mr. Wessel and Plaintiff to leave his office and go back into the waiting room while he telephoned SWAT’s counsel, Scott Brust (“Mr. Brust”), to discuss the matter. (See Strassberg Dec., p. 3:8-11; see also Wessel Dec., p. 10:17-20.) Dr. Strassberg then called Mr. Brust and explained that Mr. Wessel had objected to the use of the forms and was insisting that the psychiatric interview portion of the examination go first. (See Brust Opp’n. Dec., p. 6:6-9; see also Strassberg Dec., p. 3:12-13.) Mr. Brust inquired as to whether the order of the examination could be changed and Dr. Strassberg advised that it could not because the case involved a brain injury and the psychiatric interview would help him determine the appropriate scope for the rest of the examination. (See Brust Opp’n. Dec., p. 6:9-12.) Mr. Brust requested that Dr. Strassberg go and get Mr. Wessel from the waiting room so he could speak with Mr. Wessel and try to resolve the issues. (See Brust Opp’n. Dec., p. 6:13-15; see also Strassberg Dec., p. 3:13-14.) Dr. Strassberg then left his office and informed Mr. Wessel that Mr. Brust was on the line and asked to speak and confer with him. (See Strassberg Dec., p. 3:15-16.) Mr. Wessel refused speak with Mr. Brust. (See Strassberg Dec., p. 3:16-17.) Dr. Strassberg then returned to his office and informed Mr. Brust that Mr. Wessel would not take his call. (See Brust Opp’n. Dec., p. 6:15-16, see also Strassberg Dec., 18-20.) Mr. Brust then requested that Dr. Strassberg again attempt to explain to Mr. Wessel why conducting the psychiatric interview portion first was reasonably necessary. (See Brust Opp’n. Dec., p. 6:17-19; see also Strassberg Dec., 18-20.)

Dr. Strassberg declares that he returned to the waiting room and explained to Mr. Wessel once more why the mental examination would have to be conducted first. (See Strassberg Dec., p. 3:21-26.)  However, Mr. Wessel declares that Dr. Strassberg never provided him with any medical reasons as to why the mental examination needed to occur first. (See Wessel Opp’n. Dec., p. 4:13-17.) Dr. Strassberg declares that Mr. Wessel and Plaintiff then walked out of his office. (See Strassberg Dec., p. 3:21-26.) Conversely, Mr. Wessel declares that he and Plaintiff only left after Dr. Strassberg stated that he refused to proceed with the physical examination and that he was suspending the examination. (See Wessel Dec., p. 10:27-28, 11:1-3.)

On 3 June 3014, Plaintiff’s counsel sent SWAT’s counsel a letter regarding the events of 2 June 2014. (See Brust Dec., Ex. S.) Plaintiff’s counsel asserted that Dr. Strassberg improperly attempted to perform the mental examination prior to the physical examination and asked Plaintiff to fill out forms. (Id.) Plaintiff’s counsel demanded that SWAT agree to a protective order setting forth the start time of the physical examination, the start time of the mental examination, the start time of the psychological testing, and the overall length of the examination. (Id.) He also demanded that the protective order provide that Dr. Kong would refrain from giving Plaintiff any written questions other than the standard tests set out in the examination notice. (Id.) Plaintiff’s counsel advised that absent SWAT’s agreement by the following day, Plaintiff would file a motion for protective order. (Id.) On 5 June 2014, Plaintiff’s counsel sent another letter to SWAT’s counsel asking if SWAT’s counsel was available for hearing on Plaintiff’s motion for protective order on 11 July 2014. (See Brust Dec., Ex. T.)

SWAT’s counsel sent Plaintiff’s counsel a reply letter on 10 June 2014, indicating that SWAT would seek monetary sanctions if Plaintiff file a motion for protective order and advising that SWAT would be filing a motion for issue and monetary sanctions to also be heard on 11 July 2014. (See Brust Dec., Ex. U.)

On 13 June 2014, SWAT filed the instant motion for issue, evidence, and monetary sanctions or, in the alternative, a further order compelling Plaintiff’s attendance at the independent medical examination. On 17 June 2014, Plaintiff filed the instant motion for a protective order and an award of monetary sanctions. SWAT filed papers in opposition to Plaintiff’s motion for protective order on 27 June 2014. On the same date, Plaintiff filed opposition papers to SWAT’s motion.  SWAT filed a reply on 3 July 2014.  Plaintiff filed a reply on 7 July 2014.

Discussion

I.             Procedural Issue

As a preliminary matter, the Court notes that Plaintiff’s reply, filed on 7 July 2014, is untimely and presents new evidence and arguments not raised in Plaintiff’s moving papers. Code of Civil Procedure section 1005, subdivision (b) requires all reply papers to be filed and served at least five court days before the hearing. The Court has the discretion to refuse to consider late filed papers. (See Cal. Rules of Court, rule 3.1300(d).)  Here, Plaintiff’s reply was due on 2 July 2014, and is therefore untimely. The Court exercises its discretion to refuse to consider Plaintiff’s untimely reply as it addresses points and evidence that were not raised in Plaintiff’s moving papers. (See Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 979 [points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before].) 

II.            Request for Judicial Notice

SWAT requests that the Court take judicial notice of the transcript of the proceedings of the 28 February 2014 hearing and the Court’s 28 February 2014 order granting SWAT’s motion to compel Plaintiff to appear at the examination with Dr. Strassberg.

Evidence Code section 452, subdivision (d) authorizes the court to take judicial notice of records of “any court of this state,” and it is well settled that the court may take judicial notice of its own file so long as the documents are relevant to the matter before the court. (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file]; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].)

Here, the transcript and the Court’s order are court records that are indisputably relevant to the motions at issue. Accordingly, SWAT’s requests for judicial notice are GRANTED.

III.           Evidentiary Objections

Plaintiff objects to numerous statements in the declarations of Scott Brust, submitted in support of SWAT’s motion for sanctions and SWAT’s opposition to the motion for protective order, and the declaration of Dr. Strassberg on the grounds of lack of personal knowledge, lack of foundation, hearsay, best evidence, irrelevant, and improper legal and/or medical conclusion. There is no authority holding that the Court must rule on evidentiary objections made in connection with a discovery motion. Therefore, the Court declines to rule on Plaintiff’s evidentiary objections.

IV.           Motion for Protective Order

Plaintiff moves for a protective order providing: the start time of the physical examination, mental examination, and psychological testing; the maximum length of the physical examination, mental examination, and psychological testing; that Dr. Strassberg and Dr. Berg will refrain from giving Plaintiff any written questions other than those in the standard tests listed in the examination notice referred to the in the Court’s 28 February 2014 order; and that a lawyer for Plaintiff may attend the mental examination by Dr. Strassberg.

A.           Legal Standard

Plaintiff moves for a protective order under Code of Civil Procedure section 2032.510.[1] That statute states that an attorney for the examinee shall be permitted to attend and observe any physical examination conducted for discovery purposes and, if in the judgment of the observer the examiner becomes abusive to the examinee or undertakes to engage in unauthorized diagnostic tests and procedures, the observer may suspend it to enable the party being examined to make a motion for a protective order. (Code Civ. Proc., 2032.510, subds. (a) and (d).)

B.           Analysis

First, Plaintiff argues that the Court should issue a protective order specifying the start time of the physical examination, mental examination, and psychological testing and the maximum length of the physical examination, mental examination, and psychological testing because, absent the same, Plaintiff will be unable to exercise his right to have his counsel present during his physical examination. (See Plaintiff Mem. Ps & As., p. 2:4-16.) Plaintiff argues SWAT created a situation “that would penalize [him] or [his counsel]” for exercising his right to have his attorney observe the physical examination because the amended notice of motion stated that he was to submit to a “physical and mental examination” at 8:30 AM on 2 June 2014, but Dr. Strassberg then attempted to conduct the mental examination first. (See Plaintiff Mem. Ps & As., p. 12:3-19.) Plaintiff asserts that the amended notice of examination made it appear that the physical examination would take place first. (See Plaintiff Mem. Ps & As., p. 11:14-28.) Plaintiff further asserts that asking his attorney to wait in the waiting room for 3 hours or to return to his office penalizes him and constitutes abusive conduct. (Id.)

Plaintiff’s argument is without merit. There is no evidence that SWAT attempted to hide the time of the physical examination or “sandwich the physical examination sometime in the midst of other examinations,” as Plaintiff suggests. (See Plaintiff Mem. Ps & As., p. 11:12, 12:9-10.) The amended notice of examination clearly stated that the examination was to start at 8:30 AM. In the present case, the physical examination is not a separate examination apart from the mental examination. Despite Plaintiff’s many assertions to the contrary, the “independent medical/psychiatry, neuropsychological evaluation” ordered by the Court in its 28 February 2014 order was not solely a mental examination, but a single neuropsychological examination that would have both physical and mental and/or psychiatric components. Thus, there was no need for and there is not authority requiring SWAT to list the separate start times for each component of the examination.

Furthermore, it is not practicable to indicate the start time or length of each portion of the examination. As Dr. Strassberg points out in his declaration, the exact length of the examination depends upon the individual being evaluated. (See Strassberg Dec., p. 2:1-2.) It would not be appropriate to set a limit on the length of time allowed to conduct the examination as portions of the examination involved un-timed written psychological tests and the individual completing them may take as long as necessary. (See Strassberg Dec., p. 2:2-5.)

In addition, the amended deposition notice did not indicate in any way that the physical portion of the examination was to take place prior to the mental portion of the examination. The amended notice did not list the order in which the components of the exam were to be conducted, but merely described the type of examination that would take place. Thus, Dr. Strassberg was not under any obligation to conduct the physical portion of the examination first. Moreover, Dr. Strassberg has indicated that it is medically necessary in the instant case to proceed with the psychiatric interview prior to the physical examination because it will assist him in determining the scope of the physical examination.[2]

Finally, Plaintiff does not establish how he was prevented from exercising his right to have his counsel observe the physical portion of his examination. Plaintiff’s counsel attended the examination and was invited by Dr. Strassberg to observe the physical examination.  The fact that it may have been inconvenient for Plaintiff’s counsel to wait in the waiting room while the psychiatric interview took place did not prevent Plaintiff from exercising his right to have counsel present at the physical examination or penalize him for the same.

Accordingly, Plaintiff has not established sufficient grounds to warrant a protective order specifying the start time of the physical examination, mental examination, and psychological testing and the maximum length of the physical examination, mental examination, and psychological testing.

Second, Plaintiff argues that the Court should issue a protective order instructing Dr. Strassberg and Dr. Berg to refrain from giving Plaintiff any written questions, other than those in the standard tests listed in the amended examination notice, because the use of the “New Patient Neurology Questionnaire,” which requested information regarding Plaintiff’s past medical history, current complaints, and employment history, was unauthorized and amounted to the propounding of “an unlimited number of special interrogatories” on Plaintiff. (See Plaintiff Mem. Ps & As., p. 12:24-28; see also Kong Dec., Ex. 9.)

Plaintiff does not cite any legal authority that prohibits the use of the type of forms provided to Plaintiff by Mr. Strassberg’s staff. It is well-established that a doctor may inquire about a patient’s medical history during an examination. (See Sharff v. Super. Ct. (1955) 44 Cal.2d 508, 510 [an examining doctor should “be free to ask questions as may be necessary to enable him to formulate an intelligent opinion regarding the nature and extent of the plaintiff’s injuries”]; see also Golfland Entertainment Centers, Inc. v. Super. Ct. (2003) 108 Cal.App.4th 739.) In addition, the amended notice of examination that the Court referred to in its 28 February 2014 order indicated that a medical history would be taken. Here, the “New Patient Neurology Questionnaire” primarily solicited information about Plaintiff’s medical history and therefore was not unauthorized.  To the extent that information about Plaintiff’s employment history was asked for, it does appear that the form exceeded the scope of the order.  Nonetheless, Dr. Strassberg did not insist upon having the forms completed and indicated that he was willing to move forward with the examination without them.  Thus, Plaintiff has not established sufficient grounds to warrant a protective order instructing Dr. Strassberg and Dr. Berg to refrain from giving Plaintiff any written questions, other than those in the standard tests listed in the amended examination notice.

Third, Plaintiff argues that the Court should issue a protective order permitting Plaintiff’s counsel to attend the mental examination by Dr. Strassberg because Dr. Strassberg’s conduct (i.e., giving Plaintiff questionnaires and refusing to perform the physical examination first) warrants the same.[3]  Code of Civil Procedure section 2032.530, subdivision (b) prohibits counsel from attending an examinee’s mental examination. The Court has discretion to disregard this rule, but only in exceptional cases. (See Toyota Motor Sales, U.S.A., Inc., v. Super. Ct. (2010) 189 Cal.App.4th 1391, 1396.)  As indicated above, Dr. Strassberg’s conduct was not unreasonable and there is no evidence that Dr. Strassberg attempted to “deprive [Plaintiff] of his right to have his lawyer at his physical examination,” as Plaintiff suggests. (Plaintiff Mem. Ps & As., p. 14:21-22.) Thus, Plaintiff has not established that the instant case is so exceptional as to warrant the presence of his counsel at his mental examination.

Accordingly, Plaintiff’s motion for a protective order is DENIED.

C.           Requests for Sanctions

SWAT and Plaintiff both request sanctions in connection with Plaintiff’s motion for protective order.

1.            SWAT’s Request

SWAT requests monetary sanctions against Plaintiff and/or his attorneys in the amount of $875.00 under Code of Civil Procedure section 2032.510, subdivision (f). Code of Civil Procedure section 2032.510, subdivision (f) states that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, 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.

SWAT was successful in its opposition to Plaintiff’s motion. Plaintiff did not act with substantial justification and there are no other circumstances that make the imposition of sanctions unjust. Thus, SWAT is entitled to an award of monetary sanctions.

SWAT’s counsel declares that he spent 4 hours reviewing Plaintiff’s motion and preparing the opposition at his billing rate of $175.00 per hour. He anticipates spending an additional hour reviewing Plaintiff’s reply papers and preparing for the hearing. The Court awards sanctions only for expenses actually incurred, not for anticipated expenses.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Thus, the 1 hour of anticipated expenses is not compensable. The Court finds that the time spent and billing rate are otherwise reasonable.

Accordingly, SWAT’s request for monetary sanctions in connection with its opposition to Plaintiff’s motion for a protective order is GRANTED IN PART in the amount of $700.00.

2.            Plaintiff’s Request

Plaintiff requests monetary sanctions in the amount of $3,750.00 under Code of Civil Procedure section 2032.510, subdivision (f), in connection with his motion for protective order. Code of Civil Procedure section 2032.510, subdivision (f) states that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, 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.  Plaintiff was not successful on his motion for a protective order. Thus, Plaintiff’s request for monetary sanctions in connection with his motion for protective order is DENIED.

V.            SWAT’s Motion for Issue, Evidence, and Monetary Sanctions or, in the Alternative, an Order Compelling Plaintiff to attend the Examination

SWAT moves for an order imposing issue, evidence, and monetary sanctions or, in the alternative, a further order compelling Plaintiff’s attendance at an independent medical examination under Code of Civil Procedure section 2032.410, on the grounds that Plaintiff and his counsel violated the Court’s 28 February 2014 order.

 

 

A.           Legal Standard

Code of Civil Procedure section 2032.410 states that “[i]f a party is required to submit to a physical or mental examination [. . .] but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction [. . . ]. In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction [. . .].”

Two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.) Even where these facts are present, however, the trial court has broad discretion in imposing discovery sanctions and should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293; see also Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Additionally, the trial court should attempt to tailor the sanction to the harm caused by the withheld discovery as discovery sanctions are meant to be remedial rather than punitive (see Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381). Finally, “if a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (See Doppes, supra, 174 Cal.App.4th at 992 [internal quotation marks and citations omitted[.)

B.           Analysis

SWAT argues that Plaintiff and his counsel willfully violated the Court’s 28 February 2014 order requiring Plaintiff to undergo an “independent medical/psychiatry, neuropsychological evaluation” within 45 days of the date of the order. SWAT’s counsel asserts that, despite the Court’s order, Plaintiff refused for several months to submit to the examination. SWAT’s counsel further asserts that Plaintiff’s refusal to go forward with the examination unless the physical portion was conducted first was baseless, as was his objection to the questionnaire form. SWAT notes that Dr. Strassberg did not demand that Plaintiff complete the questionnaire form as a condition of the examination and Plaintiff’s counsel refused to speak with SWAT’s counsel to attempt to resolve the issues.

The Court agrees that Plaintiff willfully violated its 28 February 2014 order by failing to submit to the examination. As indicated above, Plaintiff’s objections to the sequencing of the exam were without merit. Furthermore, Plaintiff did not need to complete the questionnaire form to go forward with the examination. Particularly troubling is Plaintiff’s counsel’s refusal to speak with SWAT’s counsel on 2 June 2014. Had Plaintiff’s counsel taken the time to attempt informal resolution of the matter, the instant motions might have been avoided.

Plaintiff requests that the Court impose an issue sanction prohibiting Plaintiff from asserting a claim for the alleged traumatic brain injury or damages claimed to be a result thereof. Plaintiff also requests that the Court impose an evidence sanction prohibiting Plaintiff from introducing any evidence relating to the alleged traumatic brain injury or damages claimed to be a result thereof. Plaintiff further requests that the Court impose a monetary sanction in the total amount of $4,815.00 against Plaintiff and/or his counsel.

The Court finds that issue and evidence sanctions would be inappropriate at this juncture where it has not yet been determined that lesser sanctions will fail to compel compliance. (See Doppes, supra, 174 Cal.App.4th at 992.) In the instant case, monetary sanctions are warranted given Plaintiff’s and his counsel’s conduct, and the harm caused by Plaintiff’s refusal to undergo the examination. (Id.)

As indicated above, SWAT seeks monetary sanctions in the total amount of $4,815.00, in connection with its motion for sanctions. SWAT’s counsel declares that SWAT was charged fees in the amount of $1,850.00 by Dr. Strassberg and Dr. Berg as a result of Plaintiff’s failure to undergo the examination on 2 June 2014 ($950.00 for Dr. Strassberg and $900 for Dr. Berg). (See Brust Dec., p. 7:16-18; see also Strassberg Dec., p. 4:1-3.)  In addition, SWAT’s counsel declares that he spent 7 hours preparing the instant motion at his billing rate of $175.00 per hour. (See Brust Dec., p. 7:7-8.) SWAT’s counsel further declares that he spent 2 hours reviewing meet and confer letters from Plaintiff’s counsel regarding the examination. He anticipates spending 3 hours reviewing Plaintiff’s opposition papers and drafting a reply, and 1 hour preparing for and attending the hearing on this matter.

The Court awards sanctions only for expenses actually incurred, not for anticipated expenses.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Thus, the 4 hours of anticipated expenses are not compensable. Additionally, SWAT’s meet and confer efforts occurred before it filed this motion. Thus, it did not incur attorney’s fees in connection with its counsel’s meet and confer efforts as a result of the motion.  Therefore, counsel’s time spent meeting and conferring is not compensable. The Court finds that the time spent by SWAT’s counsel, the billing rate of SWAT’s counsel, and Dr. Strassberg’s and Dr. Berg’s fees are otherwise reasonable. Accordingly, SWAT is entitled to a monetary sanction in the amount of $3,075.00.

The Court notes that SWAT also requests that the Court, should it not be inclined to grant issue or evidence sanctions, order Plaintiff to attend the examination under the terms of the amended examination notice referenced in the Court’s 28 February 2014 order. In addition, SWAT requests that the Court issue an order providing that Mr. Wessel be precluded from attending the examination and another representative from his firm attend in his place. SWAT asserts that such an order is necessary to ensure that the examination will not be disrupted. The Court finds that it would be appropriate to once again order Plaintiff to attend the examination. However, the Court declines to issue an order precluding Mr. Wessel from attending Plaintiff’s examination as SWAT has not established such a measure would ensure that the examination would not be disrupted.

Accordingly, SWAT’s motion for sanctions is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to the request for issue and evidence sanctions. The motion is GRANTED as to the request for monetary sanctions in the amount of $3,075.00. In addition, the Court orders Plaintiff to submit to an independent medical evaluation with Dr. Strassberg, in accordance with the terms of the amended examination notice referenced in the Court’s 28 February 2014 order, within 30 days of the date of the filing of this order.

C.           Opposing Request for Sanctions

Plaintiff requests monetary sanctions against SWAT in the amount of $3,750.00 under Code of Civil Procedure section 2023.030, in connection with his opposition to SWAT’s motion for issue, evidence, and monetary sanctions. Code of Civil Procedure section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. Thus, Plaintiff’s request for monetary sanctions in connection with its opposition to SWAT’s motion for issue, evidence, and monetary sanctions is DENIED.

Conclusion and Order

Plaintiff’s motion for a protective order is DENIED.

SWAT’s motion for issue, evidence, and monetary sanctions is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to the request for issue and evidence sanctions. The motion is GRANTED as to the request for monetary sanctions in the amount of $3,075.00. Accordingly, within 20 days of the date of the filing of this order, Plaintiff and/or his counsel shall pay $3,075.00 to SWAT’s counsel.  In addition, the Court orders Plaintiff to submit to an independent medical evaluation with Dr. Strassberg, in accordance with the terms of the amended examination notice referenced in the Court’s 28 February 2014 order, within 30 days of the date of the filing of this order.

Plaintiff’s requests for monetary sanctions are DENIED.

SWAT’s request for monetary sanctions in connection with its opposition to Plaintiff’s motion for a protective order is GRANTED IN PART in the amount of $700.00. Accordingly, within 20 days of the date of the filing of this order, Plaintiff and/or his counsel shall pay $700.00 to SWAT’s counsel.

Timeliness of London Bridge’s Joinder

This addendum was prepared after the tentative order was posted. 

On 8 July 2014, London Bridge filed a joinder in SWAT’s motion for sanctions and SWAT’s opposition to Plaintiff’s motion for a protective order.  Code of Civil Procedure section 1005, subdivision (b), provides that moving papers must be filed at least 16 court days before the hearing and opposition papers must be filed 9 court days before the hearing.  In Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, the Court of Appeal held that a notice of joinder is subject to the requirements of Code of Civil Procedure section 1005, subdivision (b).  (Id. at pp. 1541-1542.)  Similarly, the Court of Appeal in Frazee v. Seely (2002) 95 Cal.App.4th 627, found that a notice of joinder was untimely because it did not comply with the notice requirements of Code of Civil Procedure section 473c, which govern notice for summary judgment motions.  (Id. at pp. 636-637.)  Here,LondonBridge’s joinder is subject to the notice requirements of Code of Civil Procedure section 1005, subdivision (b).  The joinder is untimely as it was filed only 2 court days before the hearing, on8 July 2014.  Accordingly,LondonBridge’s joinder is DENIED