LUZ ARACELI RIVERA VS JOHNATHON GOTZ

Tentative Rulings

Case Number: BC648276    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: BC648276    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: BC648276    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: BC648276    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: BC648276    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.