On 10/09/2015 PATRICIA LEITHEISER filed a Personal Injury - Other Personal Injury lawsuit against SAFEWAY INC. 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.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
DOES 1 TO 50
VONS COMPANIES INC. THE
LAW OFFICES OF RICHARD M. FOSTER
SOLOUKI SHOHAM JOSEPH
DISCOE TONY A. ESQ.
BUDICA STEPHEN EUGENE
DISCOE TONY ALAN
2/5/2018: OPPOSITION TO EX PARTE TO CONTINUE TRIAL
5/30/2018: THE VONS COMPANIES INC.S NOTICE OF MOTION TO COMPEL PLAINTIFFS TO LIMIT THE NUMBER OF NONRETAINED EXPERTS IN THEIR EXPERT WITNESS DESIGNATION;AND ETC.
9/25/2018: THE VONS COMPANIES, INC.'S NOTICE OF MOTION FOR MONETARY SANCTIONS AGAINST PLAINTIFF, PATRICIA LEITHEISER, IN THE AMOUNT OF $6,936.50 FOR HER FAILURE TO COMPLY WITH THIS COURT'S ORDER COMPELLING HER T
2/7/2019: Informal Discovery Conference Form for Personal Injury Courts
3/7/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
3/8/2019: Certificate of Mailing for
5/14/2019: Notice of Ruling
10/23/2015: PROOF OF SERVICE SUMMONS
2/14/2017: OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION TO COMPEL DEPOSITIONS; ETC
4/6/2017: PLAINTIFFS' OPPOSITION TO DEFENDANT THE VONS COMPANIES, INC.'S EX PARTE APPLICATIONS
4/6/2017: DEFENDANT, THE VONS COMPANIES, INC.'S, EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING HEARING DATE ON ITS MOTION FOR PROTECTIVE ORDER, AND FOR ORDER STAYING DISCOVERY AND DEPOSITIONS UNTIL COURT HEA
5/16/2017: THE VONS COMPANIES, INC.'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL DEPOSITION OF THOMAS LEITHEISER
7/19/2017: ORDER RE: MOTION TO COMPEL DEPOSITION OF NONPARTY THOMAS LEITHEISER
Notice of Ruling (of Orders Granting Attorney's Motions to be Relieved as Counsel for Both Plaintiff's); Filed by Patricia Leitheiser (Plaintiff); Patrick Leitheiser (Plaintiff)Read MoreRead Less
at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to be Relieved as Counsel (Patricia Leitheiser) - Held - Motion GrantedRead MoreRead Less
at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to be Relieved as Counsel (Patrick Leitheiser) - Held - Motion GrantedRead MoreRead Less
Minute Order ( (Hearing on Motion to be Relieved as Counsel Patricia Leitheis...)); Filed by ClerkRead MoreRead Less
Order ([Proposed] Order Granting Attorneys Motion to be relieved as counsel - civil); Filed by Patrick Leitheiser (Plaintiff)Read MoreRead Less
Order ([proposed] Order Granting Attorney's Motion to be Relieved as Counsel - Civil); Filed by Patricia Leitheiser (Plaintiff)Read MoreRead Less
Notice of Motion; Filed by Patrick Leitheiser (Plaintiff)Read MoreRead Less
Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Patrick Leitheiser (Plaintiff)Read MoreRead Less
Notice of Motion; Filed by Patricia Leitheiser (Plaintiff)Read MoreRead Less
Declaration (Declaration is Support of Attorneys Motion to be relieved as counsel - civil); Filed by Patricia Leitheiser (Plaintiff)Read MoreRead Less
Demand for Jury Trial; Filed by Vons Companies, Inc., The (Defendant)Read MoreRead Less
Answer; Filed by Vons Companies, Inc., The (Defendant)Read MoreRead Less
Receipt; Filed by Vons Companies, Inc., The (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Patricia Leitheiser (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Patricia Leitheiser (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR: 1. NEGLIGENCE; ETCRead MoreRead Less
Complaint; Filed by Patricia Leitheiser (Plaintiff); Patrick Leitheiser (Plaintiff)Read MoreRead Less
Case Number: BC597198 Hearing Date: November 14, 2019 Dept: 5
Patricia Leitheiser, et al.,
Safeway, Inc., et al.,
Case No.: BC597198
Hearing Date: November 14, 2019
[TENTATIVE] order RE:
defendant’s motion FOR SANCTIONS
Plaintiff Patricia Leitheiser (“Plaintiff”) alleges that she slipped and fell on the premises owned or controlled by Safeway, Inc. and the Vons Company (“Defendants”). Plaintiff asserts a cause of action for negligence, and her husband, co-Plaintiff Patrick Leitheiser, asserts a cause of action for loss of consortium. The Court ordered Plaintiff Patricia Leitheiser to submit to an orthopedic exam and provided notice that the Court would grant a motion for terminating sanction if she failed to do so absent good cause. Now, Defendants move for terminating sanctions and proffer a report from the physician stating that Plaintiff Patricia Leitheiser obstructed the examination. Plaintiffs filed no opposition to the motion. Therefore, the motion is granted.
Plaintiff claims that she is suffering from depression as a result of the fall. Defendants’ expert, Dr. Phillip O’Carroll, attempted to conduct a neurological examination of Plaintiff, but he was unable to perform the examination because Plaintiff sat in a corner whimpering and mumbling. Therefore, Defendants moved to compel the examination, and Plaintiff opposed the motion. On June 20, 2018, the Court (Lu, J.) ordered Plaintiff to be evaluated by a psychologist, Dr. Colin G. Koransky, and authorized specific tests to be performed. Plaintiff appeared for the examination on June 18, 2018, during which she brought and activated a tape recorder and confirmed that it was working. However, Plaintiff did not answer Dr. Koransky’s questions because her speech was incomprehensible, and she alternated between screaming and crying, disrupting the interview. Dr. Koransky was unable to complete most of the tests ordered by the Court because Plaintiff was uncooperative. At one point, Plaintiff’s “mangled speech escalated . . . from loud to screaming, became totally incomprehensible with gasping, and crying, and escalated to a point where [Koransky] decided to bring [Plaintiff’s] husband and mother into the room. This intensification did not subside for a period of approximately 12 minutes.”
Dr. Koransky concluded that Plaintiff has a personality disorder “marked by an overreliance on other people,” but more important, that she is malingering for secondary gain. Dr. Koransky concluded that “it is my opinion with a large degree of psychological probability that malingering is a central feature of [Plaintiff’s] clinical presentation.” Dr. Koransky based his opinion on, among other things, Plaintiff presenting as having severe disabilities that are inconsistent with other aspects of Plaintiff’s life and abilities. For example:
- Dr. Koransky administered the “Test of Memory Malingering” test, and Plaintiff was unable to distinguish a spoon from a snake. Yet, Plaintiff was able to use an iPhone to operate the calculator and play video games.
- Plaintiff purportedly had difficulty answering questions relating to long-term memory, but long-term memory is unaffected by a concussion. Also, Plaintiff purportedly was unable to answer basic questions about her date of birth and age, as well as the name of her youngest son, even though this information is unaffected by most forms of dementia.
- Plaintiff was unable to tell Dr. Koransky her age, but she identified her birthdate on her driver’s license. When Dr. Koransky asked her to tell him how old she was based on that date, she took out her calculator and started using it, before she suddenly closed it and started stuttering and stammering with increased volume.
- The garbled and stuttering speech itself indicates malingering.
- Plaintiff has filed civil actions against Ralph’s, Carl’s Jr., Trader Joe’s, and Carmax, some of which resulted in settlements.
Dr. Koransky concluded that Plaintiff’s behavior “is being played out in anticipation of financial gain as a result of lawsuits.” The Court noted that no guardian ad litem or conservator has been appointed in this case, notwithstanding Plaintiff’s purported symptoms. Eventually, Dr. Koransky was forced to end the examination because:
[Plaintiff] was unable or refused to get out of the chair, and her incessant shouting and [in]comprehensible speech continued for several minutes while her husband implored her to settle down and get up from the chair. . . . The screaming continued to escalate during the several minutes that it took to get her to try and walk a few steps to the waiting room and exit with her husband and mother holding onto her.
Dr. Koransky watched from the window of his office as Plaintiff exited the lobby of his building and walked to a vehicle, at which point Plaintiff “did not appear to be speaking or shouting as she calmly approached the car without assistance.”
Defendants then filed another motion to compel, which the Court (Lu, J.) granted on October 17, 2018. Following the prior examination with Dr. Koransky, Defendants’ private investigator followed and video-recorded Plaintiff. The Court found as follows:
[The investigator] recorded approximately seven minutes of Plaintiff in two locations: outside the office and near a body of water. The Court has reviewed this evidence and it appears that immediately outside Dr. Koransky’s office, Plaintiff is sitting on a bench. She does not appear to be speaking or yelling in any manner. Nor does she appear to have an agitated facial expression or body position. At the body of water, Plaintiff can be seen standing with her husband and mother and speaking to them. Again, Plaintiff does not appear agitated. . . . [T]he Court finds that Plaintiff has not satisfactorily complied with the Court’s June 20, 2018 order to appear at and participate in the defense mental examination. Plaintiff’s behavior at the July 18, 2018 examination made it impossible for Dr. Koransky to complete his examination . . . .
The Court again ordered Plaintiff to appear at and participate in a mental examination with Dr. Koransky.
Following the order, the parties agreed upon a new date for the mental examination, November 8, 2018, at 1:00 p.m., a date selected by Plaintiff. The examination would take three hours, and Plaintiff did not appear until 3:40 p.m. Plaintiff claimed that she got lost, even though she had been to Dr. Koransky’s office previously. The examination was rescheduled.
On November 13, 2018, Plaintiff appeared for her Court-ordered mental examination by Dr. Koransky. Once again, Plaintiff was uncooperative, and Dr. Koransky could not administer the Court-ordered tests. Plaintiff engaged in “incoherent repetitive jabbering with occasional words and sentences.” Plaintiff started to take the tests but “gave up very easily, declining to go further on some tests, resulting in these tests having to be abandoned after a few items were given.” Plaintiff complained of pain and discomfort, even though the tests were purely psychological in nature, and she made “minimal effort” to complete them. Plaintiff claimed that she was having difficulty reading the tests, which were written at an eighth grade reading level, even though she reported having attended two years of college with a GPA of 3.0. To the extent that Plaintiff completed some portions of the tests, the results indicated “extreme overreporting and exaggeration,” i.e., malingering. For example, on one memory test, people exhibiting Plaintiff’s symptoms, or with cases of dementia, score over 90% in the first and second trial. By contrast, Plaintiff scored 22% and 35% on the two trials, “which is a clear-cut indication of malingering on this test.” Dr. Koransky concluded that “Plaintiff seems to have made up her mind to be ‘untestable,’ testing the limits so to speak by escalating her out of control behavior, and forcing abandonment of the process.”
Defendants moved for terminating sanctions or, in the alternative, an issue sanction, as well as monetary sanctions. Plaintiff opposed the motion. On March 8, 2019, the Court granted a terminating sanction and dismissed all claims for damages related to Plaintiff’s purported mental health injuries, meaning that the case would proceed to trial only on the alleged physical injuries, including on Patrick Leitheiser’s loss of consortium claim. The Court also ordered Plaintiff to pay sanctions in the amount of $7,626.
On September 20, 2019, the Court ordered Plaintiff to submit to an independent medical examination. The Court stated in its order:
The Court is concerned because Plaintiff Patricia Leitheiser previously obstructed four prior independent medical examinations. The Court provides notice that if Plaintiff Patricia Leitheiser does not appear for the independent medical examination as ordered by this Court, or appears and does not cooperate fully with the examination, absent good cause, the Court will grant a motion for terminating sanctions.
Now, Defendants move for terminating sanctions, arguing that Plaintiff Patricia Leitheiser refused to cooperate with the examination. Plaintiffs filed no opposition to the motion. The motion is granted, and this case is dismissed with prejudice.
If a party fails to submit to a court-ordered mental examination, “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 . . . .” (Code Civ. Proc., § 2032.410.)
Plaintiff previously obstructed four separate independent medical examinations: One by Dr. Philip O’Carroll and three by Dr. Colin G. Koransky. Based upon the record, the Court found that Plaintiff Patricia Leitheiser did so knowingly, with the intent to disrupt each examination, in violation of two priors Court orders. Plaintiff Patricia Leitheiser had three opportunities to be examined by Dr. Koransky, and each time she disrupted the examination. The Court imposed a system of graduated sanctions and tailored the sanction to the misconduct. The misconduct concerned the claim for mental health injuries, so the Court granted a terminating sanction and dismisses all claims for damages related to Plaintiff Patricia Leitheiser’s purported mental health injuries, meaning that the case would proceed to trial only on the alleged physical injuries. The Court found that this sanction was appropriate with respect to Plaintiff Patrick Leitheiser’s loss of consortium claims, as the record supports a finding that he was complicit in Plaintiff Patricia Leitheiser’s efforts to obstruct the mental health examination, and Defendants cannot fairly defend against that claim given Plaintiff’s obstruction of the examination.
Now, Defendants move for terminating sanctions because Plaintiff Patricia Leitheiser refused to cooperate with the orthopedic examination of Dr. Michael J. Gillman, M.D., who reports that he could not conduct the examination because of resistance by Plaintiff Patricia Leitheiser. (Declaration of Stephen Budica, Exh. B.) Specifically, Dr. Gillman reported that Plaintiff Patricia Leitheiser resisted all attempts to test the range of motion of her right shoulder, right elbow, and right wrist. (Ibid.) Dr. Gillman concludes that Plaintiff Patricia Leitheiser is malingering. (Ibid.) The Court finds that Plaintiff Patrick Leitheiser is complicit in these efforts. Plaintiffs filed no opposition to this motion. Therefore, the motion is granted.
Defendants seek sanctions in the amount of $4,446.50 against Plaintiffs. The Court finds that Plaintiffs’ conduct constitutes an abuse of the discovery process, warranting sanctions. The Court orders Plaintiffs to pay Defendants $2,000 for the failed Independent Medical Examination with Dr. Gilman, as well as $1,480 in attorneys’ fees, based upon eight hours of attorney time at $185 per hour, plus a filing fee of $60.
CONCLUSION AND ORDER
Defendants’ motion for sanctions is granted. The Court grants a terminating sanction and dismisses this case with prejudice. The Court takes all pending motions off-calendar and vacates all dates.
The Court orders Plaintiffs, jointly and severally, to pay sanctions in the amount of $3,540 within thirty (30) days of notice of this order. Defendants shall provide notice and file proof of such with the Court.
DATED: November 14, 2019 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court