LUZ ARACELI RIVERA VS JOHNATHON GOTZ

Tentative Rulings

Case Number: ****8276    Hearing Date: January 05, 2021    Dept: 29

Rivera v. Gotz ****8276

Motion for Order Compelling Compliance with Demand for Physical Examination; Request for Sanctions is GRANTED. (Code Civ. Proc. ; 2032.240.)

On March 25, 2020, Defendant Jonathan Gotz served a demand for a physical examination of Plaintiff Araceli Rivera to submit to a physical examination before Dr. Arya Nick Shamie, an orthopedic surgeon. (Code Civ. Proc. ; 2032.220.) The demand was served directly on Plaintiff in pro per. The examination was set to occur on May 6, 2020 at 3:00 p.m. at 10850 Wilshire Blvd., #520, Los Angeles, CA. The demand set forth the scope of the examination and the manner, conditions and nature of the examination. Plaintiff did not respond to the notice as is required by Code of Civil Procedure section 2032.230 and thus waived any objection (Code Civ. Proc. ; 2032.240.)

Defendant now seeks an order compelling Plaintiff to appear at an examination on the rescheduled date of January 20, 2021. Plaintiff has not opposed the motion.

The court orders compliance with the demand pursuant to section 2032.240, subd. (b). Plaintiff is ordered to appear at the examination as follows:

Examination by Arya Nick Shamie, M.D.

Date: January 20, 2021

Time: 3:00 p.m.

Place: 10850 Wilshire Blvd., #520, Los Angeles, CA 90024

Phone: (310) 494-6310.

The examination shall not exceed four hours. The scope of the examination and the manner, conditions and nature of the examination shall be as is set forth in the demand (Ex. E to Defendant’s motion).

The court awards monetary sanctions in the amount of $200 against Plaintiff Araceli Rivera, to be paid to Defendant Jonathan Gotz. (Code Civ. Proc. ; 2032.240, subd. (c).) The court declines to order Plaintiff to pay for the fees that Defendant incurred for Plaintiff’s failure to appear for an examination that had been previously noticed for August 2019. That earlier notice was served on Plaintiff’s former counsel, who apparently died at around that time. The court does not find that there is sufficient evidence that Plaintiff had actual notice of the August 2019 examination or that she had agreed to appear on that date and time.

Moving party is ordered to give notice within two days of the date of this order. Notice must be given in a manner ensured to provide delivery within one day (i.e., by overnight delivery). Moving party is ordered to file proof of service of the notice.

Case Number: ****8276    Hearing Date: December 08, 2020    Dept: 29

Rivera v. Gotz

Defendant’s Motion for an Order Dismissing the Action of Plaintiff as a Terminating Sanction for Failure to Obey Court Orders and for Monetary Sanctions is DENIED.

On 2/7/20, the Court heard and denied Defendant’s motion to dismiss, finding that Plaintiff was likely unaware of Defendants’ prior motion to compel written responses heard on 12/1/19 because both the motion and notice of ruling was served on Plaintiff’s counsel, who had already died.

On 12/9/19, the Court heard and granted Defendant’s motions to compel responses to Supplemental Interrogatories and Supplemental inspection demand. Motion, Ex. A. Plaintiff failed to comply.

On 2/7/20, the Court heard Defendant’s first motion for an order dismissing the action. Plaintiff appeared at the hearing and informed the Court that her counsel had died. Upon review of the file, the Court determined that Plaintiff was likely unaware of the 12/9/19 hearing on Defendants’ Motion to Compel given that Plaintiff’s counsel had died, and notice of the motions were sent to him. Motion, Exhibit D. The Court declined to issue an order compelling Plaintiff’s responses.

On 9/8/20, the Court heard and denied Defendant’s second motion to dismiss. This motion was served on Plaintiff, in pro per. Given that Plaintiff was likely not aware of the 12/9/19 motions to compel because of her counsel’s death, the Court ordered Defendant to file new motions to compel responses which was to be heard on 10/23/20.

On 10/23/20, the Court took Defendant’s motions to compel responses to supplemental discovery off calendar because Defendant did not appear at the hearing

Defendant had re-served Plaintiff with the supplemental discovery on 5/12/20. Plaintiff did not respond. Defendant sent a letter to Plaintiff on 6/24/20, notifying Plaintiff of the outstanding discovery responses. Motion, Exhibit E. Plaintiff has not served responses. Declaration of Jennifer Leeper, ¶¶ 7-8.

If the moving party does not submit on the tentative ruling and does not appear at the hearing (either remotely or in person), the tentative ruling does not become the ruling of the court; rather, the motion is taken off calendar.

Case Number: ****8276    Hearing Date: October 23, 2020    Dept: 29

Rivera v. Gotz

Defendant’s Two unopposed Motions for Order Compelling Response to Supplemental Interrogatories, Set One, and Supplemental Request for Production of Documents, Set One; Request for Sanctions are GRANTED.

Plaintiff Luz Araceli Rivera is ordered to provide verified responses to the foregoing written discovery without objections within 15 days of notice of this order. (Code Civ Procedure ; 2030.290(b); ;2031.300(b).) Untimely responses result in a waiver of objections. (Code Civ. Proc. ; 2030.290(b); ;2031.300(b).)

The Court imposes sanctions totaling $406.00 for both motions against Plaintiff for failing to respond to an authorized method of discovery, which is discovery abuse. (Code Civ. Proc. ;2023.030.)

Moving party is ordered to give notice.

Case Number: ****8276    Hearing Date: February 07, 2020    Dept: 29

Rivera v. Gotz

Defendant’s Motion for an Order Dismissing the Action of Plaintiff as a Terminating Sanctions for Failure to Obey Court Orders and for Sanctions of $519.00 is DENIED.

On 12/9/19, the Court heard and granted Defendant’s motions to compel responses to written discovery and ordered Plaintiff to comply with a demand for a physical examination. Motion, Ex. A. The Court’s file reflects that on 12/13/19, Defendant served notice of ruling on Plaintiff.

On 12/12/19, Defendant served a Demand for Physical Examination of Plaintiff scheduled for 12/18/19. Motion, Ex. B. Defense counsel states that Plaintiff did not comply with the Court’s order to appear for her medical examination. Defendant now requests an order dismissing the action. Declaration of Jennifer S. Leeper, ¶ 4.

The Court is extremely troubled by Plaintiff’s failure to comply with the Court’s order. However, “terminating sanctions are to be used sparingly because of the drastic effect of their application.” Department of Forestry & Fire Protection v. Howell (2017) 18 Cal. App. 5th 154, 191-92. Sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.

The Court applies the incremental approach. There is no request for issue or evidentiary sanctions, so the Court imposes further monetary sanctions against Plaintiff at this juncture. Plaintiff is admonished that she must comply with the Court’s prior order to submit to a medical examination as demanded by Defendant to avoid further sanctions, up to and including terminating sanctions resulting in the dismissal of Plaintiff’s case. Plaintiff is ordered to appear for the physical examination on the date set by the Defendant. If Plaintiff fails to appear, Defendant may renew the motion for terminating sanctions.

The court imposes sanctions of $204.65 against Plaintiff, Luz Araceli Rivera, and her counsel, Edward Lopez, pursuant to Cal Code Civil Procedure ; 2023.010(g) for failure to comply with a court order to provide discovery, which is a misuse of the discovery process.

Moving party is ordered to give notice.

Case Number: ****8276    Hearing Date: December 23, 2019    Dept: 2

Rivera v. Gotz

The Motion for Order to Continue Trial is GRANTED.

Good cause having been shown, the Court continues the trial to April 2 , 2020 at 8:30 a.m. The FSC is continued to March 19, 2020. The discovery and motion cut-off dates are to be calculated based on the new trial date.

The trial date is firm. The parties are ordered to inform their witnesses of the new date immediately. The Court has granted this continuance to the date selected by the moving party and there was no opposition to the selected date. The Court presumes the date has been cleared with the parties, counsel and experts, and grants the continuance in reliance on the implicit representation that the parties, counsel and experts will be available on the date of trial and day-to-day thereafter for the length of the trial plus a five-day trailing period. No further continuances should be expected.

Moving party is ordered to give notice.

Case Number: ****8276    Hearing Date: December 09, 2019    Dept: 2

RIVERA v. GOTZ

I. MOTIONS TO COMPEL RE SUPPLEMENTAL INTERROGATORIES AND INSPECTION DEMANDS

Defendant’s Two Motions for Order Compelling Response to Supplemental Interrogatories and Supplemental Inspection Demand; Request for Sanctions filed on 10/15/19 are GRANTED. Plaintiff is ordered to serve verified responses without objection to the foregoing discovery within 10 days. Cal Code Civ Procedure ;2031.300, 2030.290.

The court imposes sanctions of $409.30 against Plaintiff, Luz Araceli Rivera, and her counsel of record, Edward Lopez, for the failure to timely respond to authorized methods of discovery, which is discovery abuse. Cal Code Civil Procedure ;2030.290(c); 2031.300(c).

II. MOTION TO COMPEL PHYSICAL EXAMINATION

Defendant’s Motion for Order Compelling Compliance with Demand for Physical Examination; Request for Sanctions filed on 10/15/19 is GRANTED. Plaintiff is ordered to appear for a physical examination on a date duly noticed by Defendant.

A defendant is entitled to demand a physical examination of a personal injury plaintiff. Cal Code Civil Procedure ; 2032.220(a). If the plaintiff fails to comply, the defendant may move for an order compelling compliance with the demand. Cal Code Civil Procedure ; 2032.250.

Here, a demand for physical examination was served on Plaintiff on 7/15/19, demanding appearance at at a physical examination on 8/14/19. Plaintiff failed to appear at the examination. Declaration of Jennifer S. Leeper, ¶ 3. Thus, pursuant to section 2032.250, Defendant is entitled to an order compelling Plaintiff’s appearance.

The court imposes sanctions of $1,204.65 against Plaintiff, Luz Araceli Rivera, and her counsel, Edward Lopez, pursuant to Cal Code Civil Procedure ; 2032.410 for costs and fees incurred by Defendant.

Moving party is ordered to give notice.

Case Number: ****8276    Hearing Date: November 18, 2019    Dept: 2

Rivera v. Gotz

Defendant’s Two Motions for Order Compelling Response to Supplemental Interrogatories and Supplemental Inspection Demand; Request for Sanctions filed on 10/15/19 are GRANTED. Plaintiff is ordered to serve verified responses without objection to the foregoing discovery within 10 days. Cal Code Civ Procedure ;2031.300, 2030.290.

The court imposes sanctions of $409.30 against Plaintiff, Luz Araceli Rivera, and her counsel of record, Edward Lopez, for the failure to timely respond to authorized methods of discovery, which is discovery abuse. Cal Code Civil Procedure ;2030.290(c); 2031.300(c).

Defendant’s Motion for Order Compelling Compliance with Demand for Physical Examination; Request for Sanctions filed on 10/15/19 is DENIED. The Demand for Physical Examination purportedly served on Plaintiff for an 8/14/19 examination does not include a proof of service. Motion, Ex. A. There is no evidence that Plaintiff was properly and timely served with the demand.

Defendant did serve a second Demand for Physical Examination of Plaintiff on 9/18/19. Motion, Ex. B. However, that examination was scheduled for 10/23/19. Defendant filed this motion on 10/15/19 before the examination date.

Moving party is ordered to give notice.

Case Number: ****8276    Hearing Date: November 15, 2019    Dept: 2

Rivera v. Gotz

Defendant’s Two Motions for Order Compelling Response to Supplemental Interrogatories and Supplemental Inspection Demand; Request for Sanctions filed on 10/15/19 are GRANTED. Plaintiff is ordered to serve verified responses without objection to the foregoing discovery within 10 days. Cal Code Civ Procedure ;2031.300, 2030.290.

The court imposes sanctions of $409.30 against Plaintiff, Luz Araceli Rivera, and her counsel of record, Edward Lopez, for the failure to timely respond to authorized methods of discovery, which is discovery abuse. Cal Code Civil Procedure ;2030.290(c); 2031.300(c).

Defendant’s Motion for Order Compelling Compliance with Demand for Physical Examination; Request for Sanctions filed on 10/15/19 is DENIED. The Demand for Physical Examination purportedly served on Plaintiff for an 8/14/19 examination does not include a proof of service. Motion, Ex. A. There is no evidence that Plaintiff was properly and timely served with the demand.

Defendant did serve a second Demand for Physical Examination of Plaintiff on 9/18/19. Motion, Ex. B. However, that examination was scheduled for 10/23/19. Defendant filed this motion on 10/15/19 before the examination date.

Moving party is ordered to give notice.