ROBERTO MARTINEZ VS GURDEEP SINGH ET AL

Tentative Rulings

Case Number: BC660521    Hearing Date: December 26, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff, Roberto Martinez filed this action against Defendants, Gurdeep Singh, Habir Singh, Perez Paper Recycling, and Albert Perez for damages arising out of a three-vehicle semi accident.

2. Motion to Compel Production of Defense Medical Report

a. Parties’ Positions

Defendants, Gurdeep and Habir Singh had Plaintiff’s IME conducted by Harvey Lawrence Edmonds, MD on 10/04/19. Plaintiff made numerous e-mail requests for a copy of the report, and Defendants consistently said they would provide the report once it was prepared/received.

Defendants, in opposition, indicate they provided the report on 12/10/19, rendering the motion moot. Defendants argue the motion must be denied because it was not timely filed and served. Defendants also contend the report was not due until 15 days prior to trial, rather than 30 days after examination, as Plaintiff contends.

Plaintiff, in reply, contends the report was due 30 days after the examination. Plaintiff contends the report that was finally provided is deficient. Plaintiff indicates 12/26/19 was the first available date for hearing and was selected in light of the upcoming trial date. Plaintiff reiterates the request for sanctions.

b. Timeliness of Motion

Plaintiff filed the motion on 11/27/19 and served it by mail the same day. Defendants contend the 12/26/19 hearing date fails to comply with the notice requirements of CCP §1005. Sixteen court days after 11/27/19 fell on 12/23/19. Five court days later is 12/28/19.

Notably, it is likely Plaintiff counted backward from the hearing date, rather than forward from the service date. Sixteen court days before 12/26/19 fell on 12/03/19, and five calendar days prior to 12/03/19 fell on 11/28/19.

Plaintiff’s method of calculating the time is incorrect. CCP §12. In any event, because this is a very close distinction, because of the numerous court holidays intervening, and because Defendants addressed the merits of the motion, the Court will rule on the motion on its merits. See Carlton v. Quint (2000) 77 Cal.App.4^th 690, 697, holding that a party who argues the merits of a motion waives any argument concerning lack of timely service.

c. Proper Date for Service of the Report

CCP §2032.610(b) provides, “If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.” Defendants argue they were permitted to serve the report 15 days prior to trial. This is a mis-reading of the Code, which clearly stated, “whichever is earlier.” In this case, 30 days after the 10/04/19 IME fell on or about 11/04/19, and 15 days prior to trial falls on 1/14/20. 11/04/19 is “earlier” than 1/14/20, and therefore Defendants were required to produce the report by 11/04/19.

d. Report

Defendants contend the motion is substantively moot because they produced the report after they received the motion. Plaintiff, in reply contends the report is defective because it fails to contain the required information. Neither Defendants nor Plaintiff included a copy of the report with the opposition or the reply, so the Court cannot make a determination in this regard. The Court orders Counsel to meet and confer to resolve issues concerning any deficiencies in the report.

e. Sanctions

CCP §2032.620(a) permits a plaintiff to make a motion to compel production of a defense medical report if the defendant does not timely produce the report. §2032.620(b) requires the Court to impose sanctions unless the Court finds the other party acted with substantial justification or there are other circumstances that make imposition of sanctions unjust. Because of the lack of proper notice of the motion, sanctions are not imposed.

Plaintiff is ordered to give notice.

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 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.