Case Number: VC065875 Hearing Date: January 29, 2019 Dept: SEC

BELMAN v. GARCIA AND GALLARZO PROPERTY HOLDINGS, LLC

CASE NO.: VC065875

HEARING: 01/29/19

JUDGE: LORI ANN FOURNIER

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TENTATIVE ORDER

Defendant/Cross-Complainant/Cross-Cross-Defendant MARIELA I. GARCIA’s Motion to Quash Deposition Subpoena for Production of Business Records to SCPMG LEGAL is CONTINUED to Thursday, April 25, 2019 at 1:30 p.m. in Dept. SE-C to be heard in conjunction with GARCIA’s Motion to Quash Deposition Subpoena for Production of Business Records to Kaiser Permanente set for that same date.

Defendants LOS BAGRES CORPORATION; GARCIA & GALLARZO PROPERTY HOLDINGS, LLC; and JUAN ERASMO GARCIA’s Motion for Monetary Sanctions and Issue and Evidentiary Sanctions is GRANTED in part, and DENIED without prejudice in part.

Moving Party(s) to give Notice.

Plaintiff LORENA BELMAN and her counsel of record are ORDERED to pay Defendants LOS BAGRES CORPORATION; GARCIA & GALLARZO PROPERTY HOLDINGS, LLC; and JUAN ERASMO GARCIA and their counsel of record, sanctions of $1,435.00 (5 hrs. x $275.00. hr.) + ($60.00 filing fees) no later than 15 calendar days from the date of this hearing. The Court declines to award Defendants costs $2,025.00 for fees incurred by Dr. Glaser’s office in attempting to conduct the examination where no evidence has been proffered to justify this amount.

On November 29, 2018, this Court GRANTED Defendants’ Motion to Compel Plaintiff’s Mental Examination. The Court’s Order stated, in pertinent part, “Defendants’ motion is granted. Plaintiff is ORDERED to appear and submit to a medical examination on December 11, 2018 at 9:00 a.m. This date may be extended by agreement of the parties. Plaintiff’s medical examination is to be conducted by Dr. David M. Glaser at the Glaser Forensic Group, A Medical Corp., located at 16530 Ventura Blvd., Suite 601, Encino, California 91436. The medical examination shall proceed pursuant to the terms outlined in Paragraph 12 of the Declaration of Louie A. Ruiz. The complete examination, including interview and testing, will take place over the course of two consecutive eight-hour days.” (Min. Order, 11-29-18)

Defendants argue that they are entitled to monetary sanctions, and issue and evidentiary sanctions because Plaintiff “walked out” of the mental examination on December 11, 2018. Defendants further argue that sanctions are warranted where a third-party observer was interfering with the mental examination.

“If a party is required to submit to a physical or mental examination under Articles 2 (commencing with Section 2032.210) or 3 (commencing with Section 2032.310), or under Section 2016.030, 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 under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction under Chapter 7 (commencing with Section 2023.010.)” (CCP §2032.410.)

It is a commonly stated axiom that discovery sanctions “should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) However, a court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with discovery obligations. The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit. (Id. at 794-795.)

The Court has reviewed the Moving and Opposition Briefs. Given the evidence presented, the Court declines to order terminating, issue, or evidentiary sanctions at this time. Terminating, issue, and evidentiary sanctions are severe and to be used sparingly. While the Court does not condone Plaintiff’s failure to comply with a Court Order, the Court cannot conclude that Plaintiff’s actions justify the severe imposition of terminating sanctions at this time. However, Defendants are entitled to the discovery sought.

Therefore, Plaintiff is ORDERED to appear and submit to a medical examination no later than 15 calendar days from the date of the Court’s issuance of this Order. This date may be extended by agreement of the parties. Plaintiff’s medical examination is to be conducted by Dr. David M. Glaser at the Glaser Forensic Group, A Medical Corp., located at 16530 Ventura Blvd., Suite 601, Encino, California 91436. The complete examination, including interview and testing, will take place over the course of two consecutive eight-hour days, without the presence of Plaintiff’s counsel or any third-parties.

Moreover, the Court finds monetary sanctions are appropriate where Plaintiff unilaterally ended the mental exam on December 11, 2018. Monetary sanctions are granted, as indicated above.

The Court notes that Plaintiff is not precluded from seeking issue or evidentiary sanctions from the trial court.