DORIS COLEMAN ET AL VS METRO ET AL

Tentative Rulings

Case Number: BC699976    Hearing Date: March 29, 2021    Dept: 29

Coleman  vs. Metro et al

Court Order Re: Continuance of the March 29, 2021 Hearing to April 05, 2021;

On the Court's own motion, the Hearing on Motion to Compel Production of Business Records From Mark Reid, L.M.F.T. and the Custodian of Records for Mark Reid, L.M.F.T.; Request for Monetary Sanctions Against Mark Reid, L.M.F.R. and His Custodian of Record scheduled for 03/29/2021 is  continued to 04/05/2021 at 01:30 PM in Department 29 at Spring Street Courthouse.

Counsel for the Moving Party(ies) is ordered to give notice and file proof of service of said notice.

Case Number: BC699976    Hearing Date: March 16, 2021    Dept: 29

Case Number: BC699976   Hearing Date: March 16, 2021     Dept: 29

Doris Coleman, et al. vs. Metro, et al..

Defendant's Motion to Compel Plaintiff, Doris Coleman, to Appear for Physical Examination; Request for Monetary Sanctions of $1,985.00 Against Plaintiff and Her Attorney’s of Record. TENTATIVE

Motion to Compel Plaintiff, Doris Coleman, to Appear for Physical Examination by Defendants Los Angeles County Metropolitan Transportation Authority and Armando Ramirez is GRANTED; Request for Monetary Sanctions of $1,985.00 Against Plaintiff and Her Attorneys of Record is GRANTED. 

BACKGROUND

This action arises out of a motor vehicle accident that occurred on June 20, 2017.

On March 29, 2018, Plaintiff Doris Coleman and Robert Coleman (hereinafter, the “Plaintiffs”) filed a complaint against Defendants Metro, Los Angeles Metropolitan Transportation Authority (“MTA”), and Armando Ramirez for general negligence, motor vehicle negligence, and loss of consortium. The complaint alleges that Defendant and MTA employee Armando Ramirez collided with Plaintiff Doris Coleman (“Plaintiff Coleman”) on the I-210 freeway causing her to sustain injuries. 

On December 21, 2020, Defendants MTA and Armando Lopez (hereinafter “Defendants”) filed the instant motion to compel Plaintiff Coleman to appear for a physical examination. Thereafter, Plaintiff Coleman filed opposition papers on January 19, 2021. In response, Defendants filed their reply on January 25, 2021. 

Analysis:

As a preliminary matter, the Court should find that the Defendants satisfied the meet and confer requirement under CCP § 2032.250 by sending a letter electronically to Plaintiff Coleman’s counsel on October 2, 2020 regarding her failure to appear to the scheduled medical examination. (McGaffigan Decl. pg. 13:14-17; Exh. 5.) Plaintiffs counsel admits to receiving the emailed letter but did not reply out of an administrative error. (Waddell Decl. ¶ 5.)

I. Motion to Compel Appearance for Physical Examination

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee.  (CCP § 2032.220 (a).)  A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (CCP § 2032.220 (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (CCP § 2032.220 (d)). 

Within 20 days after service of the demand, the plaintiff to whom the demand is directed shall serve a written statement that he or she will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination.  (CCP § 2032.230 (a).)

Here, Defendants move to compel Plaintiff Coleman to appear for a physical examination on April 27, 2021. On June 3, 2020, Plaintiff Coleman was served with a notice of physical examination which was to be conducted on September 23, 2020. (McGaffigan Decl. at pg. 12: 18-22; Exh. 2.) Thereafter, Plaintiff Coleman responded stating that she will comply with demand while raising concerns but without objections. (Id. at pg 13:26-28; Exh 3.) These concerns were discussed between the parties on July 21, 2020, but Plaintiff Coleman claims that specific assurances were not provided as to her protection against exposure to Covid-19. (Waddell Decl. at ¶5.) Ultimately, Plaintiff Coleman failed to appear at the September 23, 2020 examination without advance notice. (McGaffigan Decl. at pg. 13:7-13.) On October 2, 2020, Defendants attempted to meet and confer as to Plaintiff Coleman’s failure to appear but did not receive a response. (McGaffigan Decl. pg. 13:14-17; Exh. 5.)

While Plaintiff Coleman has legitimate concerns about contracting Covid-19, she has not taken the appropriate measures to protect herself, such as requesting a protective order. Moreover, Defendants are entitled to demand a physical examination of her because she is alleging personal injuries (CCP § 2032.220(a)), and it would not be reasonable to postpone this examination indefinitely until things are safer, as Plaintiff Coleman suggests in her opposition. 

Because Defendants are entitled to a demand a physical examination and Plaintiff Coleman has not shown substantial justification as to why she did not appear at her examination or why she did not provide advance notice of this decision, the Court GRANTS Defendants’ Motion to Compel Appearance for Physical Examination, and Plaintiff Coleman should be ordered to appear for the April 27, 2021 examination with Dr. Michael P. Weinstein. At 9:30 a.m. The Court urges the parties to meet and confer as to providing specific assurances or measures that would be taken at the examination to mitigate Plaintiff’s exposure to Covid-19.

II. Request for Sanctions

“If a party is required to submit to a physical or mental examination . . . 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 . . . In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction . . .”  (CCP § 2032.410.)

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2032.250(b).) 

Here, Plaintiff Coleman was required to appear for a physical examination but failed to appear. As such, Defendants are entitled to being awarded sanctions. (CCP § 2032.410.) Moreover, while Plaintiff Coleman was concerned about her risk of exposure to contracting Covid-19, she did not act with substantial justification when she failed to provide advance notice to the Defendants that she would not be attending the medical examination. As such, sanctions against the Plaintiff and her attorneys of records would be appropriate under CCP § 2032.410. Because defense counsel has not abused the discovery process, Plaintiff’s request for sanctions is denied.

Accordingly, the Court GRANTS Defendants’ request for sanctions and imposes against Plaintiff and her counsel of record, jointly and severally, in the amount of $1,985.00, in preparing this motion, preparing the reply, and attending the hearing at defense, at counsel’s rate of $275 per hour along with the filing fee. Furthermore. Plaintiff Coleman’s request for sanctions is DENIED.

Moving party shall provide notice.

Case Number: BC699976    Hearing Date: September 01, 2020    Dept: 29

Coleman et al. v. Metro et al.

Motion by Los Angeles Metropolitan Transportation Authority to Order USC Verdugo Hills Hospital’s Compliance With the Subpoena Duces Tecum is TAKEN OFF CALENDAR. Motions to compel production of documents pursuant to a subpoena issued to a nonparty must be personally served on the non-party. (Cal Rules of Court, Rule 3.1346.) The proof of service indicates the motion was served only on the parties to the action and not the subpoenaed non-party. Accordingly, the motion is procedurally defective.

Moving party is ordered to give notice.

NOTE:  PARTIES MUST APPEAR THIS DATE AS A TRIAL SETTING CONFERENCE IS ALSO SET ON CALENDAR FOR THIS DATE. 

In order to comply with social distancing regulations, all parties are strongly encouraged to appear via video or telephonic services offered by the Court, through LACourtConnect.