On 11/23/2016 MARCELLO PALMIERI filed a Personal Injury - Motor Vehicle lawsuit against ALAN TRAYNOR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.
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11/23/2016
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
PALMIERI MARCELLO
DOES 1 THROUGH 25 INCLUSIVE
TRAYNOR ALAN
CRACK OF DAWN LLC
WEINSTEIN ZEV Y.
MANOUCHERHRI SAHM ESQ.
SCHWIMER WEINSTEIN LLP
SADEGHIBAHARI SOHEIL
RAFFALOW BRETOI & ADAMS
2/8/2017: Amendment to Complaint (Fictitious/Incorrect Name)
2/27/2017: ANSWER TO UNVERIFIED COMPLAINT OF MARCELLO PALMIERI, AN INDIVIDUAL
2/27/2017: DEMAND FOR JURY TRIAL
4/6/2017: NOTICE OF CHANGE OF HANDLING ATTORNEY WITHIN OUR FIRM
6/8/2017: NOTICE OF CHANGE OF FIRM NAME
5/1/2018: ORDER AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES] PERSONAL INJURY COURTS ONLY
8/8/2018: Substitution of Attorney
9/6/2018: PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL DISCOVERY CUTOFF DEADLINES PURSUANT TO STIPULATION; OR IN THE ALTERNATIVE, SHORTEN TIME TO HEAR SAID MOTION; DECLARATION OF SOHEIL BAHARI, ES
9/6/2018: Minute Order
12/20/2018: Amendment to Complaint (Fictitious/Incorrect Name)
12/21/2018: Opposition
1/22/2019: Notice of Change of Firm Name
5/2/2019: Motion to Be Relieved as Counsel
5/2/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil
5/7/2019: Motion to Compel
5/20/2019: Opposition
5/21/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil
5/21/2019: Motion to Be Relieved as Counsel
Notice of Ruling; Filed by Alan Traynor (Defendant)
at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to Compel (Motion to Compel Independent Medical Examination) - Held - Motion Granted
Minute Order ( (Hearing on Motion to Compel Motion to Compel Independent Medi...)); Filed by Clerk
Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Alan Traynor (Defendant)
at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to be Relieved as Counsel - Not Held - Taken Off Calendar by Party
Motion to Be Relieved as Counsel; Filed by Marcello Palmieri (Plaintiff)
Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Marcello Palmieri (Plaintiff)
Opposition (TO DEFENDANT'S MOTION TO COMPEL ADDITIONAL PHYSICAL EXAMINATION OF PLAINTIFF; MEMORANDUM OF POINTS AN AUTHORITIES IN SUPPORT THEREOF); Filed by Marcello Palmieri (Plaintiff)
Motion to Compel ([Defendant's] Plaintiff Marcello Palmieri to Submit to an Additional Independent Medical Examination with Dr. Steven Nagelberg); Filed by Alan Traynor (Defendant)
Motion to Be Relieved as Counsel; Filed by Marcello Palmieri (Plaintiff)
ANSWER TO UNVERIFIED COMPLAINT OF MARCELLO PALMIERI, AN INDIVIDUAL
Amendment to Complaint (Fictitious Name)
Amendment to Complaint; Filed by Marcello Palmieri (Plaintiff)
Proof-Service/Summons; Filed by Marcello Palmieri (Plaintiff)
Proof of Service of Summons and Complaint
Proof of Service of Summons and Complaint Proof of Service of Summons and Complaint as to Alan Traynor
Proof-Service/Summons; Filed by Marcello Palmieri (Plaintiff)
Complaint
Complaint; Filed by Marcello Palmieri (Plaintiff)
Summons; Filed by Marcello Palmieri (Plaintiff)
Case Number: BC641142 Hearing Date: November 08, 2019 Dept: 5
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MARCELLO PALMIERI, et al.,
Plaintiffs, v.
ALAN TRAYNOR, et al.,
Defendants.
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Case No.: BC641142
Hearing Date: November 8, 2019
[TENTATIVE] order RE: DEFENDANT’S motions FOR TERMINATING SANCTIONS
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Plaintiff Marcello Palmieri (“Plaintiff”) filed this action against Defendant Alan Traynor (“Defendant”) following a motor vehicle collision. Now, Defendant moves for terminating sanctions based upon Plaintiff’s failure to appear for a Court-ordered medical examination by an orthopedic surgeon.
Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc. §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)
On June 3, 2019, the Court granted Defendant’s motion to compel an independent medical examination by a designated orthopedic surgeon. The Court ordered Plaintiff to submit to the examination within 45 days of notice, which occurred on June 4, 2019 by mail, meaning that the examination should have been completed on or before July 24, 2019. However, Plaintiff’s former counsel filed a motion to be relieved on May 21, 2019, which ultimately was granted on June 24, 2019, following two hearings on the motion. Defendant filed the instant motion on October 9, 2019, and Plaintiff filed a substitution of counsel form on October 25, 2019. Based upon this record, the Court cannot conclude that Plaintiff’s failure to comply with this Court’s order warrants a terminating sanction. “[T]erminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.” (Link v. Cater, 60 Cal.App.4th 1315, 1326 [emphasis added].) The Court believes that a further order will effectuate the medical examination. Defendant did not move for any other sanctions, so the Court orders none.
CONCLUSION AND ORDER
Defendant’s motion for terminating sanctions is denied without prejudice. Plaintiff is ordered to submit to an independent medical examination within thirty (30) days of notice of this order. Defendant shall provide notice and file proof of such with the Court.
DATED: November 8, 2019 ___________________________
Hon. Stephen I. Goorvitch
Judge of the Superior Court