This case was last updated from Los Angeles County Superior Courts on 10/24/2020 at 05:53:07 (UTC).

ARMANDO JAPA CABANLIT ET AL VS CON-WAY FREIGHT INC ET AL

Case Summary

On 04/04/2017 ARMANDO JAPA CABANLIT filed a Personal Injury - Motor Vehicle lawsuit against CON-WAY FREIGHT INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS, JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****6364

  • Filing Date:

    04/04/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARC D. GROSS

JON R. TAKASUGI

HOLLY E. KENDIG

THOMAS D. LONG

 

Party Details

Plaintiff and Petitioner

CABANLIT ARMANDO JAPA

Plaintiffs, Petitioners and Not Classified By Court

CABANLIT ARMANDO JAPA

NATHALI PATRICIA

Defendants, Respondents and Cross Plaintiffs

XPO LOGISTICS WORLDWIDE INCORPORATION

CON-WAY FREIGHT INCORPORATION

DOES 1 TO 50

HERNANDEZ JOSE NUNEZ

XPO LOGISTICS FREIGHT

RAMIREZ MARIO

UNION PACIFIC RAILROAD COMPANY

Defendants and Cross Defendants

RAMIREZ MARIO

UNION PACIFIC RAILROAD COMPANY A DELAWARE CORPORATION

Petitioners, Guardian Ad Litems and Not Classified By Court

NATHALI PATRICIA

CABANLIT ETHAN

Minor and Not Classified By Court

CABANLIT ETHAN

Other

ADAMS THOMAS G. ESQ.

Attorney/Law Firm Details

Plaintiff, Petitioner and Minor Attorneys

SANDJAYA ALVIN

FRANCISCO RHETT T. ESQ.

ADAMS THOMAS GREGORY ESQ.

Defendant, Respondent and Cross Plaintiff Attorneys

TRACHTMAN BENJAMIN R. ESQ.

TRACHTMAN BENJAMIN ROSS ESQ.

Cross Defendant Attorney

SCHAFF JASON

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 06/08/2021
  • Hearing06/08/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 05/25/2021
  • Hearing05/25/2021 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/19/2021
  • Hearing02/19/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 02/19/2021
  • Hearing02/19/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 02/19/2021
  • Hearing02/19/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 02/17/2021
  • Hearing02/17/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Deem Request for Admissions Admitted

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  • 02/17/2021
  • Hearing02/17/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Deem Request for Admissions Admitted

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  • 02/17/2021
  • Hearing02/17/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Deem Request for Admissions Admitted

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  • 10/21/2020
  • Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Order to Show Cause Re: Dismissal (RE Failure to Prosecute Within 3 years) - Not Held - Taken Off Calendar by Court

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  • 09/23/2020
  • Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Jury Trial - Not Held - Advanced and Vacated

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135 More Docket Entries
  • 04/24/2017
  • DocketOrd Apptng Guardian Ad Litem; Filed by Plaintiff/Petitioner

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  • 04/18/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 04/18/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 04/14/2017
  • DocketFIRST AMENDED COMPLAINT FOR DAMAGES; (1) NEGLIGENCE, ETC

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  • 04/14/2017
  • DocketFirst Amended Complaint; Filed by Armando Japa Cabanlit (Plaintiff); Ethan Cabanlit (Claimant); Patricia Nathali (Petitioner)

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  • 04/06/2017
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 04/04/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 04/04/2017
  • DocketComplaint; Filed by Armando Japa Cabanlit (Plaintiff)

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  • 04/04/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 04/04/2017
  • DocketCOMPLAINT FOR DAMAGES; (1) NEGLIGENCE (2) NEGLIGENCE PER SE

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Tentative Rulings

Case Number: BC656364    Hearing Date: February 03, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT, INC., ET AL.,

Defendant(s).

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CASE NO: BC656364

[TENTATIVE] ORDER

Dept. 31

1:30 p.m.

February 3, 2020

1. Background Facts

Plaintiffs, Armando and Ethan Cabanlit and Patricia Nathali filed this action against Defendants, Con-Way Freights, Inc., XPO Logistics Worldwide, Inc., and Jose Nunez Hernandez for damages arising out of an automobile accident. 

2. Motion to Compel Additional IMEs

a. Parties’ Positions

XPO and Hernandez have previously conducted orthopedic IMEs of Plaintiffs, Armando Cabanlit and Patricia Nathali.  At this time, XPO and Hernandez (hereafter “Defendants”) move to compel Armando and Patricia to sit for a neurological, neuropsychological, and neuropsychiatric examination.  Defendants contend both of the two adult plaintiffs are claiming to have suffered a TBI as a result of the accident.  Defendants also contend both of the two adult plaintiffs claim severe emotional distress as a result of the examination, both due to their own injuries and also as a result of the serious injuries sustained by their child.

Plaintiffs oppose the motion.  They contend Defendants’ failure to provide declarations from experts necessarily means they did not meet their moving burden to show good cause for the examinations sought.  Second, they contend Defendants failed to articulate the manner, condition, and scope, and other required details of the persons to conduct the examinations.  Third, they contend Defendants have not shown there is no less intrusive means to obtain the information sought.  Finally, they ask that, in the event an order compelling the examination(s) is granted, the Court also issue an order concerning preservation and exchange of information.  Notably, Plaintiffs concede they will ultimately need to sit for some type of mental examination, but contend Defendants failed to meet their burden in connection with this particular motion.

In reply, Defendants contend there is no authority for the position that experts must file declarations in support of this motion.  They contend they provided all required information about the scope of the examinations.  They contend there is no less intrusive method to obtain the information.  Finally, they argue the limitations proposed by Plaintiffs on the examinations are improper.

b. Standard for Multiple/Mental Health IMEs

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).) 

The examination will be limited to whatever condition is “in controversy” in the action.  (CCP §2032.020(a).)  This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.  Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.  Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.  Discovery responses can also frame the issues regarding the injuries and damages alleged. 

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.

c. Good Cause

Plaintiffs contend Defendants failed to show good cause for the examinations because they did not provide expert declarations in support of their motion.  Plaintiffs fail to cite any authority for the position that this is required.  Notably, Plaintiffs expressly concede there IS good cause for the IMEs, and concede they are making claims for TBI, PTSD, and extreme emotional distress.  The Court finds good cause for the examinations sought.

d. Scope

Plaintiffs contend Defendants failed to satisfy the requirements of CCP §2032.320(d), which requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.”  Defendants’ notice of motion indicates the scope of the examination is set forth in the Declaration of Counsel, filed concurrently with the moving papers.  The Declaration of Counsel references Exhibit O thereto with respect to the scope of the examination.  Exhibit O is an e-mail from Defense Counsel to Plaintiffs’ attorney. 

With respect to the c, Defense Counsel’s e-mail included an attachment that sets for the scope of the examination.  The attachment indicates the examination will consist of a clinic interview and then a battery of tests, which could include any of 22 enumerates tests.  The attachment notes that there will be no blood tests or other intrusive or protracted medical tests.  Plaintiffs contend listing 22 potential tests is not compliant with Carpenter. 

In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260, the defendant argued that simply naming the types of tests to be performed, as opposed to the exact tests themselves, was sufficient in the context of a mental health examination.  The court of appeals disagreed, and noted that the statute required the defendant to specify the “diagnostic tests and procedures,” which means they must be listed by name.

The Court indicated, “Nor does the discussion in Ragge otherwise persuade us that it would be inappropriate to compel advance disclosure of the test names. Yamaha refers us to a passage in which the Ragge court stated: ‘Because the mental examination provides one of the few opportunities for a defendant to have access to a plaintiff, and the only opportunity for a defendant to have a plaintiff examined by defendant's expert, some preference should be given to allowing the examiner to exercise discretion in the manner and means by which the examination is conducted, provided it is not an improper examination.’ (Ragge, supra, 165 F.R.D. at p. 609.) In general, we have no quarrel with this proposition. Certainly the examiner should have some discretion in choosing the manner and means of conducting the examination—but only as long as the tests he or she proposes are not unduly invasive or otherwise inappropriate. The way to assure that the tests do not make the examination “improper,” as Ragge puts it, is to require the court to name the tests in its order. This assures that the court has considered any objections to the tests and provides the examiner clear parameters for the examination.”

The Court often sees cases where defendants list upwards of 100 tests to be potentially performed.  The Court finds Defendants’ choice of 22 potential tests for these joint experts is sufficiently narrow to permit Plaintiffs to prepare for the examination.  The Court therefore finds Defendants met their obligations in this regard. 

However, with respect to the neurological examination, the issue is less clear.  Defense Counsel’s e-mail merely states, “Dr. Gol’s examination may include, but is not limited to: a mental status examination, motor function and balance examination, coordination examination, sensory examination, reflex examination, and an evaluation of the cranial nerves….”  The Court finds it cannot issue an order with the “but not limited to” language; the Court must provide Plaintiffs with notice of the potential tests to be performed.  The Court asks Counsel to meet and confer to resolve this issue.

e. Less Intrusive Means

Plaintiffs do not meaningfully articulate what less intrusive means exist other than the examinations sought.   The Court finds it is self-evident that IMEs are the necessary and correct means to determine the issues presented. 

f. Conditions of Examination

In the event the Court orders the examinations, Plaintiffs ask for an order:

· Limiting the scope of inquiry by the experts;

· Directing that the examinations be video-recorded in their entirety;

· Requiring the experts to prepare and exchange reports;

· Permitting the “raw data” to only be exchanged between the parties’ experts.

The Court is not inclined, at this time, to limit the scope of the expert inquiry.  There is no authority permitting video, as opposed to audio, recording, and therefore this request is also denied.  Preparation of and exchange of expert reports is governed by Code, and there is no need for an order in this regard.  The Court asks Counsel to meet and confer concerning a protective order governing the use of raw data; it appears both parties agree this protective order is appropriate. 

g. Conclusion

The motion to compel a neuropsychological/neuropsychiatric examination is granted.  Counsel must meet and confer to select a date, time, and location for the examinations. 

The motion to compel a neurological examination is denied without prejudice due to the failure to adequately designate the scope of the examination.  The Court finds the examination is necessary, and the Court will grant a proper future motion in this regard.  The Court asks Counsel to resolve issues relating to this motion without the need for further law and motion practice.

Counsel are ordered to meet and confer concerning a protective order limiting use of the raw data obtained through  testing. 

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  

Case Number: BC656364    Hearing Date: December 13, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT, INC., ET AL.,

Defendant(s).

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Case No.: BC656364

[TENATATIVE] ORDER GRANTING MOTION TO CONTINUE TRIAL DATE

Dept. 3

1:30 p.m.

December 13, 2019

INITIAL NOTE: The Court will be dark on Friday, 12/13/19. If the parties submit on the tentative, no appearance will be necessary. If the parties wish to be heard in connection with the tentative, they must appear on Monday, 12/16/19 at 1:30 p.m. in Department 3 of the Spring Street Courthouse. If that date and time are not available for the parties, the parties must meet and confer among themselves to agree upon a new date for the hearing (at 1:30 p.m.), and use the online scheduling system to reschedule the hearing on the motion. Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.

Plaintiffs filed this action on 4/04/17 for damages arising out of a train v. tractor-trailer accident. One of the plaintiffs is currently four years old, and alleges serious injuries as a result of the accident. The parties are scheduling multiple IMEs concerning his damages. Additionally, new parties have been added this year by way of cross-complaint. Finally, the parties are attempting to reschedule a global mediation in an attempt to settle the case without the need for trial. Based on the foregoing, Defendants bring a stipulated motion to continue the trial date.

The Court finds Defendants met their burden to show a trial continuance is necessary, and fully justified the duration (six months) of the request. The 3/23/20 trial date is advanced to today’s date and continued to Wednesday, 9/23/20 at 8:30 a.m. in Department 3 of the Spring Street Courthouse. The 3/09/20 FSC is advanced to today’s date and continued to 9/09/20 at 10:00 a.m. in Department 3. All discovery and expert cut-off dates are continued to reflect the new trial date.

Moving Defendants are ordered to give notice.