Tentative Rulings

Case Number: BC666894    Hearing Date: June 26, 2020    Dept: 32

 ORDER #1 of 2

Superior Court of California

County of Los Angeles

Department 32

BACKGROUND

Plaintiff Billy Wallace (“Plaintiff”) filed this action against Defendants Bruce Merivale, Devan Banks, and Woods Drive Auto, LLC (“Defendants”) following a motor vehicle collision. Among other injuries, Plaintiff alleges that he suffers from constant headaches as a result of the accident. Now, Defendants move to compel Plaintiff to submit to a physical examination by Cary D. Alberstone, M.D. (“Dr. Alberstone”), a neurosurgeon. The motion is granted.

Legal Standard

When the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may obtain a physical examination of the plaintiff. (Code Civ. Proc., §§ 2032.020, 2032.220.) A defendant is entitled to one physical examination of the plaintiff in a personal injury action on demand. (Code Civ. Proc., § 2032.220, subd. (a).)

DISCUSSION

Defendants first noticed Plaintiff’s examination with Dr. Alberstone for September 11, 2019. (Declaration of Kim B. Puckett, ¶ 4 & Exh. C.) Plaintiff objected to the notice on the basis that Plaintiff was not available on that date for the examination. (Id., Exh. D.) Defendants proposed alterative dates for the examination, but Plaintiff did not respond. (Id., ¶ 6 & Exh. E.) Defendants re-noticed the examination for February 4, 2020. (Id., ¶ 7 & Exh. E.) Plaintiff again objected to the notice on the basis that Plaintiff was not available on that date. (Id., ¶ 9 & Exh. H.) Defendants refused to take the examination off-calendar, and Plaintiff failed to appear. (Id., ¶¶ 10-11.)

The Court finds no good cause for Plaintiff’s conduct in this matter. The record reflects that Defendants’ counsel attempted to schedule Plaintiff’s examination on several occasions. Each time, Plaintiff stated that he was not available but refused to propose alternative dates. The record reflects no valid reason excusing Plaintiff from appearing for an examination with Dr. Alberstone. Therefore, the Court grants the motion. The Court also finds that Plaintiff’s conduct constitutes an abuse of the discovery process and grants Defendants’ request for sanctions against Plaintiff. The Court orders Plaintiff to pay sanctions in the amount of $760 requested by Defendants, comprised of the $700 non-appearance fee and $60 filing fee, as that amount is fair and reasonable under the circumstances.

The Court does not order Plaintiff’s counsel to pay any sanctions, as the notice was defective. The caption for the motion references sanctions against “Plaintiff and His Counsel” but the notice itself that Defendants request sanctions against “Plaintiff BILLY WALLCE” without reference to counsel. The caption is not sufficient because it does not identify counsel.

CONCLUSION AND ORDER

The motion to compel the physical examination of Plaintiff is granted. Plaintiff must appear for a physical examination before Dr. Alberstone no sooner than September 1, 2020, and no later than November 1, 2020, unless both parties stipulate to date outside this range. The Court is affording Plaintiff this delay in order to retain new counsel and to ensure that the examination may be conducted safely, in light of COVID-19. Plaintiff shall pay sanctions to Defendants, through their counsel, on or before the final status conference date in this case. Defendants shall provide notice and file proof of such with the Court.

ORDER #2 of 2

Attorney George G. Mgdesyan (“Counsel”) moves to be relieved as counsel for Plaintiff Billy Wallace (“Plaintiff”). Counsel has filed forms MC-051 and MC-052 as required, and has lodged with the Court a copy of the proposed order on form MC-053 as required. (Cal Rules of Court, rule 3.1362.) The basis for this motion is a breakdown in the attorney-client relationship. Based upon the foregoing, the motion is granted. The Court advances and vacates the final status conference and trial dates. The Court must set new dates to afford Plaintiff sufficient time to retain new counsel or prepare to handle the case himself, and to afford the parties sufficient time to complete the defense medical examination of Plaintiff. Following a trial setting conference, the Court sets the following dates:

Final Status Conference: February 22, 2021, at 10:00 a.m.

Trial: March 10, 2021, at 8:30 a.m.

Counsel should note that Counsel will remain attorney of record until Counsel files with the Court proof of service of the signed order. Counsel must serve a copy of the signed order (form MC-053) on Plaintiff within 10 days.

Counsel is ordered to provide notice of this order and file proof of service of such.