Preview
1/13/2020
1 Keith Gillette (SBN 191082)
Summer M. Smith (SBN 214251)
2 BULLIVANT HOUSER BAILEY PC
101 Montgomery Street, Suite 2600
3 San Francisco, CA 94104-4146
Telephone: 415.352.2700
4 Facsimile: 415.352.2701
E-mail: keith.gillette@bullivant.com
5 summer.smith@hullivant.com
6 Attorneys for Defendants
AMERICAS PROPANE, LP; AMERICAS
7 PROPANE, INC.; and AMERICAS, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11
12 BRICEIDA LOPEZ, an individual, JOSE Case No.: 18CIV01696
SOLIS, an individual.
13 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF
14 MOTION TO COMPEL INDEPENDENT
V. MEDICAL EXAMINATIONS AND FOR
15 MONETARY SANCTIONS
PAUL BONIFACIO, an individual;
16 MARGARET HYUN, an individual;
AMERICAS PROPANE, INC., a corporation; DATE: 01.28.20
17 AMERICAS, INC., a corporation; and DOES TIME: 9:00 A.M.
ONE through ONE-HUNDRED, inclusive. DEPT: LAW AND MOTION
18 COMPLAINT: APRIL 6,2018
Defendants. FAC: SEPTEMBER 20,2018
19 SAC: JULY 16,2019
TRIAL: FEBRUARY 18, 2020
20
21 Americas Propane, L.P., Americas Inc. and Americas Propane, Inc. (collectively,
22 “Americas”) respectfully submit the following memorandum of points and authorities in
23 support of their motion to compel independent medical examination of Brecidia Lopez and Jose
24 Solis and for monetary sanctions.
25 ///
26 ///
27 ///
28 ///
4844-4051-9344.1 36942/00009 -1-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS
1 I. FACTS
2 On December 13, 2019, AmeriGas served plaintiffs via email^ with Amended Demands
3 for Independent Medical Examination of Brecidia Lopez and Jose Solis (“Amended Demands”).
4 Gillette Declaration f4. Exhibit A (true and correct copies of AmeriGas’ Amended Demands for
5 Independent Medical Examination of Brecidia Lopez and Jose Solis served via email on
6 plaintiffs on December 13, 2019). The Amended Demands specified an examination date of
7 January 15, 2020 to take place at Shriners Hospital, 2425 Stockton Boulevard, 7th Floor,
8 Sacramento, California. The location specified is a facility at which plaintiffs have received
9 other treatment and at which other discovery has been noticed in this action. AmeriGas selected
10 that location because it believed the location to be within mileage requirements and because of
11 plaintiffs’ familiarity and comfort with the facility. The Amended Demands also specified the
12 time, place, manner, conditions, scope, and nature of the examination, as well as the identity and
13 the specialty of the physician who will perform the examination.
14 Subsequently, plaintiffs’ counsel mentioned in passing an intent to object to the location
15 specified in the Amended Demands. In an effort to resolve plaintiffs concerns and expedite the
16 physical examination (but in no way agreeing with plaintiffs’ position), on January 2, 2020,
17 AmeriGas served via email Second Amended Demands for Independent Medical Examination
18 of Brecidia Lopez and Jose Solis, with an examination date of January 15, 2020 to take place at
19 Hampton Inn, 11951 State Highway 267, Truckee, Ca/i/brn/a (“Second Amended Demands”).
20 Gillette Declaration *[15, Exhibit B (true and correct copies of AmeriGas’ Second Amended
21 Demands for Independent Medical Examination of Brecidia Lopez and Jose Solis served via
22 email on plaintiffs on January 2, 2020). While plaintiffs had not filed any formal objection or
23 provided notice of any issue with the Amended Demands, AmeriGas served the Second
24 Amended Demands based on plaintiffs’ counsel’s passing comment about the location.
25 AmeriGas’ Second Amended Demands only changed the location of the examination to another
26
27
28 ^ The parties have stipulated to accept email service in this case.
4844-4051-9344.1 36942/00009 -2-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS
1 facility closer to plaintiffs in the Truekee area, but every other aspeet of the Amended Demands
2 remained the same, including date and time of the examination.
3 While this modifieation comes at signifieant expense to AmeriGas who are incurring
4 $1,000 dollars an hour for the doctor’s travel time independent of completing the medical
5 examination portion of his work, counsel nonetheless made arrangements with the examining
6 doctor to travel the additional distance to plaintiffs at their expense.
7 On January 6, 2020, after the Second Amended Demands were re-served on all counsel,
8 plaintiffs served written objections to the Second Amended Demands, refusing to the
9 examination on the grounds the Amended Demands were untimely. Gillette Declaration f6.
10 Exhibit C (true and eorrect copies of plaintiffs’ Responses and Objections to AmeriGas’
11 Amended Demands for Independent Medical Examination of Brecidia Lopez and Jose Solis).
12 AmeriGas made a reasonable and good faith attempt at an informal resolution of each
13 issue presented by this motion by first changing the location of the physical examination to a
14 place that is more eonvenient for plaintiffs and then trying to resolve the issues in this motion
15 with plaintiffs’ counsel after reeeiving their objeetion. Plaintiffs’ counsel indicated that they
16 would withdraw their objection if defendants would stipulate to the admissibility of certain
17 medical records or damage numbers, which is not agreeable to defendants. In light of the
18 imminent trial date in February, AmeriGas had no choice but to exercise diligence on this matter
19 and file the present motion so this critieal issue can be resolved in a timely manner.
20 11. ARGUMENT
21 A. Plaintiffs’ Refusal to Submit to the Examination on the Date Specified Is
Unwarranted and Plaintiffs’ Should be Compelled to Comply with AmeriGas’
22 Second Amended Demand
23 Code of Civil Procedure §2032.250(a) states:
24 If a defendant who has demanded a physical examination under this
article, on receipt of the plaintiffs response to that demand, deems
25 that any modification of the demand, or any refusal to submit to the
physieal examination is unwarranted, that defendant may move for
26 an order compelling compliance with the demand. This motion
shall be accompanied by a meet and confer declaration under
27 Section 2016.040.
28 ///
4844-4051-9344.1 36942/00009 -3-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS
1 Here, plaintiffs’ refusal to submit to physical examination on January 15, 2020 in
2 Truckee is based solely on the objection that the Second Amended Demands are untimely. No
3 other objection or reason was raised by plaintiffs in their written objections. Plaintiffs’
4 “untimely” objection is completely without merit and unwarranted. Plaintiffs have been on
5 notice of the date and time of the physical examination since they were served with AmeriGas’
6 Amended Demands on December 13, 2019. The fact that AmeriGas served Second Amended
7 Demands in an attempt to accommodate plaintiffs’ concerns about the location does not change
8 the fact that plaintiffs have had notice of the January 15, 2020 examination date since
9 December 13, 2019. While this modification comes at significant expense to AmeriGas who are
10 incurring $1000 dollars an hour for the doctor’s travel time independent of completing the
11 medical examination portion of his work, counsel nonetheless made arrangements with the
12 examining doctor to travel the additional distance to plaintiffs at their expense. Notwithstanding
13 AmeriGas’ efforts to accommodate plaintiffs, plaintiffs refuse to comply.
14 Moreover, the instant objection is not well taken or perceived as a professional or
15 meritorious objection as opposed to an effort to extract other advantage. In response to
16 AmeriGas’ meet and confer efforts, plaintiffs’ counsel indicated that they would withdraw their
17 objection if defendants would stipulate to the admissibility of certain medical records or damage
18 numbers. This is all the more basis for the compelling the independent medical examinations
19 when the objection is being used in an attempt to extort strategic advantage as to damage claims.
20 B. Monetary Sanctions are Warranted
21 Code of Civil Procedure §2032.250(b) states:
22 The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
23 attorney who unsuccessfully makes or opposes a motion to compel
compliance with a demand for a physical examination, unless it
24 finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
25 sanction unjust.
26 Assuming AmeriGas prevails on this motion, which it believes it should, AmeriGas
27 should be awarded monetary sanctions under CCP §2032.250(b). Here, plaintiffs’ objection and
28 refusal to comply with the physical examination on January 15, 2020 is without merit and
4844-4051-9344.1 36942/00009 -4-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS
1 unwarranted and is therefore without substantial justifieation. Moreover, plaintiffs’ counsel’s
2 indication that that they would withdraw their objection if defendants would stipulate to the
3 admissibility of certain medical records or damage numbers further indicates that the objection
4 is being used in an attempt to extort strategic advantage as to damage claims and that there is
5 not substantial justification for plaintiffs’ position.
6 Counsel for AmeriGas spent 5 hours preparing this motion and expects to spend an
7 additional 3 hours reviewing plaintiffs’ opposition and preparing the reply. The hourly rate for
8 AmeriGas’ counsel is $195 per hour. Therefore, AmeriGas respectfully requests that the court
9 award $1,560 (8 hours x 195 per hour) in monetary sanctions against plaintiffs and their
10 counsel.
11 III. CONCLUSION
12 For the foregoing reasons, AmeriGas respectfully requests that the Court grant its
13 Motion to Compel Independent Medical Examination of Brecidia Lopez and Jose Solis and for
14 Monetary Sanctions.
15 DATED: January 10, 2020 Respectfully Submitted,
16 BULLIVANT HOUSER BAILEY PC
17
18 By ./s/ Summer M. Smith__________________
Keith Gillette
19 Summer M. Smith
20 Attorneys for Defendants
AMERIGAS PROPANE, LP; AMERIGAS
21 PROPANE, INC.; and AMERIGAS, INC.
* s|: >1::)!
22
23
24
25
26
27
28
4844-4051-9344.1 36942/00009 -5-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS
1 PROOF OF SERVICE
Briceida Lopez, et al. v. Paul Bonifacio, et al.
2 San Mateo Superior Court No. 18CIV01696
3 I am employed in the City and County of San Francisco by the law firm of Bullivant
Flouser Bailey (“the business”), 101 Montgomery Street, Suite 2600, San Francisco, CA 94104.
4 1 am over the age of eighteen (18) and not a party to this action. On January 10, 2020,1 served
the document entitled:
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
6 MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS;
AND FOR IMPOSITION OF MONETARY SANCTIONS
7
upon the following parties:
8
COUNSEL EMAIL ADDRESStESl
9
10 MATTHEW D. DAVIS mdavis@walkuplawoffice.com
SPENCER J. PAHLKE spahlke@walkuplawoffice.com
11 Walkup, Melodia, Kelly & Schoenberger kbenzien@walkuplawoffice.com
650 California Street, 26* Floor ssaephan@walkuplawoffice.com
12 San Francisco, CA 94108-2615 vrose@walkuplawoffice.com
Telephone: 415.981.7210 lmccombe@walkuplawoffice.com
13
Facsimile: 415.391.6965
14 Attorneys for: Plaintiffs BRICEIDA LOPEZ and JOSE
SOLIS
15
SHAWN A. TOLIVER shawn.toliver@lewisbrisbois.com
16 julie.azevedo@lewisbrisbois.com
JULIE M. AZEVEDO
17 Lewis Brisbois Bisgaard & Smith, LLP rose.chan@lewisbrisbois.com
2185 North California Boulevard, Suite 300
18 Walnut Creek, CA 94596
Telephone: 925.357.3456
19 Facsimile: 925.478.3260
Attorneys for: Defendants PAUL BONIFACIO and
20
MARGARET HYUN
21
JAMES T. HULTQUIST jhultquist@reedsmith.com
22 Reed Smith LLP dkirby@reedsmith.com
10 South Wacker Drive mchin@reedsmith.com
23 Chicago, IL 60606-7507
Telephone: 312.207.1000
24 Facsimile: 312.207.6400
Attorneys for: Defendant AMERIGAS PROPANE, LP
25
() BY MAIL (CCP §1013(a)): I am readily familiar with the ordinary practice of the
26 business with respect to the collection and processing of correspondence for mailing with
the United States Postal Service. 1 placed a true and correct copy of the above-titled
27 document in an envelope addressed as above, with first class postage thereon fully prepaid.
1 sealed the aforesaid envelope and placed it for collection and mailing by the United
28 States Postal Service in accordance with the ordinary practice of the business.
4844-4051-9344.1 36942/00009 -6-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS
1 Correspondence so placed is ordinarily deposited by the business with the United States
Postal Service on the same day.
2
(x) BY EMAIL OR ELECTRONIC TRANSFER: Pursuant to the parties’ stipulation to
3 electronic service, 1 caused a copy of the document to be sent from e-mail address
roberta.beach@bullivant.com to the persons at the e-mail addressed listed in the service
4 list. I did not, within a reasonable time after the transmission, any electronic message or
other indication that the transmission was unsuccessful.
5
() BY FACSIMILE TRANSMISSION (CCP S1013(el. CRC 2.3061: I transmitted the
6 document by facsimile transmission by placing it in a facsimile machine (telephone
number 415-352-2701) and transmitting it to the facsimile machine telephone number
7 listed above. A transmission report was properly issued by the transmitting facsimile
machine. The transmission was reported as complete and without error. A true and correct
8 copy of the transmission report is attached hereto.
9 0 BY OVERNIGHT DELIVERY (CCP S1013(cft: I am readily familiar with the ordinary
practice of the business with respect to the collection and processing of correspondence
10 for mailing by Express Mail and other carriers providing for overnight delivery. I placed
a true and correct copy of the above-titled document in an envelope addressed as above,
11 with first class postage thereon fully prepaid. 1 sealed the aforesaid envelope and placed
it for collection and mailing by Express Mail or other carrier for overnight delivery in
12 accordance with the ordinary practice of the business. Correspondence so placed is
ordinarily deposited by the business with Express Mail or other carrier on the same day.
13
0 BY PERSONAL SERVICE UPON AN ATTORNEY (CCP SlOlUaft: I placed a true
14 and correct copy of the above-titled document in a sealed envelope addressed as indicated
above. I delivered said envelopes by hand to a receptionist or a person authorized to accept
15 same at the address on the envelope, or, if no person was present, by leaving the envelope
in a conspicuous place in the office between the hours of nine in the morning and five in
16 the afternoon.
17 () BY MESSENGER SERVICE: I placed a true and correct copy of the above-entitled
document in a sealed envelope addressed as indicated above and provided it to a
18 professional messenger service for delivery during normal business hours on this date.
19 0 BY PERSONAL SERVICE UPON A PARTY fCCP SlOlKbft: I placed a true and
correct copy of the above-titled document in a sealed envelope addressed as indicated
20 above. I delivered each envelope by hand to a person of not less than eighteen (18) years
of age at the address listed on the envelope, between the hours of eight in the morning and
21 six in the evening.
22 I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct.
23
Executed on January 10, 2020, at San Francisco, California.
24
25 RcieteRTA c 6each
26
27
28
4844-4051-9344.1 36942/00009 -7-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS
Preview
1/13/2020 1 Keith Gillette (SBN 191082) Summer M. Smith (SBN 214251) 2 BULLIVANT HOUSER BAILEY PC 101 Montgomery Street, Suite 2600 3 San Francisco, CA 94104-4146 Telephone: 415.352.2700 4 Facsimile: 415.352.2701 E-mail: keith.gillette@bullivant.com 5 summer.smith@hullivant.com 6 Attorneys for Defendants AMERICAS PROPANE, LP; AMERICAS 7 PROPANE, INC.; and AMERICAS, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 12 BRICEIDA LOPEZ, an individual, JOSE Case No.: 18CIV01696 SOLIS, an individual. 13 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 14 MOTION TO COMPEL INDEPENDENT V. MEDICAL EXAMINATIONS AND FOR 15 MONETARY SANCTIONS PAUL BONIFACIO, an individual; 16 MARGARET HYUN, an individual; AMERICAS PROPANE, INC., a corporation; DATE: 01.28.20 17 AMERICAS, INC., a corporation; and DOES TIME: 9:00 A.M. ONE through ONE-HUNDRED, inclusive. DEPT: LAW AND MOTION 18 COMPLAINT: APRIL 6,2018 Defendants. FAC: SEPTEMBER 20,2018 19 SAC: JULY 16,2019 TRIAL: FEBRUARY 18, 2020 20 21 Americas Propane, L.P., Americas Inc. and Americas Propane, Inc. (collectively, 22 “Americas”) respectfully submit the following memorandum of points and authorities in 23 support of their motion to compel independent medical examination of Brecidia Lopez and Jose 24 Solis and for monetary sanctions. 25 /// 26 /// 27 /// 28 /// 4844-4051-9344.1 36942/00009 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS 1 I. FACTS 2 On December 13, 2019, AmeriGas served plaintiffs via email^ with Amended Demands 3 for Independent Medical Examination of Brecidia Lopez and Jose Solis (“Amended Demands”). 4 Gillette Declaration f4. Exhibit A (true and correct copies of AmeriGas’ Amended Demands for 5 Independent Medical Examination of Brecidia Lopez and Jose Solis served via email on 6 plaintiffs on December 13, 2019). The Amended Demands specified an examination date of 7 January 15, 2020 to take place at Shriners Hospital, 2425 Stockton Boulevard, 7th Floor, 8 Sacramento, California. The location specified is a facility at which plaintiffs have received 9 other treatment and at which other discovery has been noticed in this action. AmeriGas selected 10 that location because it believed the location to be within mileage requirements and because of 11 plaintiffs’ familiarity and comfort with the facility. The Amended Demands also specified the 12 time, place, manner, conditions, scope, and nature of the examination, as well as the identity and 13 the specialty of the physician who will perform the examination. 14 Subsequently, plaintiffs’ counsel mentioned in passing an intent to object to the location 15 specified in the Amended Demands. In an effort to resolve plaintiffs concerns and expedite the 16 physical examination (but in no way agreeing with plaintiffs’ position), on January 2, 2020, 17 AmeriGas served via email Second Amended Demands for Independent Medical Examination 18 of Brecidia Lopez and Jose Solis, with an examination date of January 15, 2020 to take place at 19 Hampton Inn, 11951 State Highway 267, Truckee, Ca/i/brn/a (“Second Amended Demands”). 20 Gillette Declaration *[15, Exhibit B (true and correct copies of AmeriGas’ Second Amended 21 Demands for Independent Medical Examination of Brecidia Lopez and Jose Solis served via 22 email on plaintiffs on January 2, 2020). While plaintiffs had not filed any formal objection or 23 provided notice of any issue with the Amended Demands, AmeriGas served the Second 24 Amended Demands based on plaintiffs’ counsel’s passing comment about the location. 25 AmeriGas’ Second Amended Demands only changed the location of the examination to another 26 27 28 ^ The parties have stipulated to accept email service in this case. 4844-4051-9344.1 36942/00009 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS 1 facility closer to plaintiffs in the Truekee area, but every other aspeet of the Amended Demands 2 remained the same, including date and time of the examination. 3 While this modifieation comes at signifieant expense to AmeriGas who are incurring 4 $1,000 dollars an hour for the doctor’s travel time independent of completing the medical 5 examination portion of his work, counsel nonetheless made arrangements with the examining 6 doctor to travel the additional distance to plaintiffs at their expense. 7 On January 6, 2020, after the Second Amended Demands were re-served on all counsel, 8 plaintiffs served written objections to the Second Amended Demands, refusing to the 9 examination on the grounds the Amended Demands were untimely. Gillette Declaration f6. 10 Exhibit C (true and eorrect copies of plaintiffs’ Responses and Objections to AmeriGas’ 11 Amended Demands for Independent Medical Examination of Brecidia Lopez and Jose Solis). 12 AmeriGas made a reasonable and good faith attempt at an informal resolution of each 13 issue presented by this motion by first changing the location of the physical examination to a 14 place that is more eonvenient for plaintiffs and then trying to resolve the issues in this motion 15 with plaintiffs’ counsel after reeeiving their objeetion. Plaintiffs’ counsel indicated that they 16 would withdraw their objection if defendants would stipulate to the admissibility of certain 17 medical records or damage numbers, which is not agreeable to defendants. In light of the 18 imminent trial date in February, AmeriGas had no choice but to exercise diligence on this matter 19 and file the present motion so this critieal issue can be resolved in a timely manner. 20 11. ARGUMENT 21 A. Plaintiffs’ Refusal to Submit to the Examination on the Date Specified Is Unwarranted and Plaintiffs’ Should be Compelled to Comply with AmeriGas’ 22 Second Amended Demand 23 Code of Civil Procedure §2032.250(a) states: 24 If a defendant who has demanded a physical examination under this article, on receipt of the plaintiffs response to that demand, deems 25 that any modification of the demand, or any refusal to submit to the physieal examination is unwarranted, that defendant may move for 26 an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration under 27 Section 2016.040. 28 /// 4844-4051-9344.1 36942/00009 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS 1 Here, plaintiffs’ refusal to submit to physical examination on January 15, 2020 in 2 Truckee is based solely on the objection that the Second Amended Demands are untimely. No 3 other objection or reason was raised by plaintiffs in their written objections. Plaintiffs’ 4 “untimely” objection is completely without merit and unwarranted. Plaintiffs have been on 5 notice of the date and time of the physical examination since they were served with AmeriGas’ 6 Amended Demands on December 13, 2019. The fact that AmeriGas served Second Amended 7 Demands in an attempt to accommodate plaintiffs’ concerns about the location does not change 8 the fact that plaintiffs have had notice of the January 15, 2020 examination date since 9 December 13, 2019. While this modification comes at significant expense to AmeriGas who are 10 incurring $1000 dollars an hour for the doctor’s travel time independent of completing the 11 medical examination portion of his work, counsel nonetheless made arrangements with the 12 examining doctor to travel the additional distance to plaintiffs at their expense. Notwithstanding 13 AmeriGas’ efforts to accommodate plaintiffs, plaintiffs refuse to comply. 14 Moreover, the instant objection is not well taken or perceived as a professional or 15 meritorious objection as opposed to an effort to extract other advantage. In response to 16 AmeriGas’ meet and confer efforts, plaintiffs’ counsel indicated that they would withdraw their 17 objection if defendants would stipulate to the admissibility of certain medical records or damage 18 numbers. This is all the more basis for the compelling the independent medical examinations 19 when the objection is being used in an attempt to extort strategic advantage as to damage claims. 20 B. Monetary Sanctions are Warranted 21 Code of Civil Procedure §2032.250(b) states: 22 The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or 23 attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it 24 finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the 25 sanction unjust. 26 Assuming AmeriGas prevails on this motion, which it believes it should, AmeriGas 27 should be awarded monetary sanctions under CCP §2032.250(b). Here, plaintiffs’ objection and 28 refusal to comply with the physical examination on January 15, 2020 is without merit and 4844-4051-9344.1 36942/00009 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS 1 unwarranted and is therefore without substantial justifieation. Moreover, plaintiffs’ counsel’s 2 indication that that they would withdraw their objection if defendants would stipulate to the 3 admissibility of certain medical records or damage numbers further indicates that the objection 4 is being used in an attempt to extort strategic advantage as to damage claims and that there is 5 not substantial justification for plaintiffs’ position. 6 Counsel for AmeriGas spent 5 hours preparing this motion and expects to spend an 7 additional 3 hours reviewing plaintiffs’ opposition and preparing the reply. The hourly rate for 8 AmeriGas’ counsel is $195 per hour. Therefore, AmeriGas respectfully requests that the court 9 award $1,560 (8 hours x 195 per hour) in monetary sanctions against plaintiffs and their 10 counsel. 11 III. CONCLUSION 12 For the foregoing reasons, AmeriGas respectfully requests that the Court grant its 13 Motion to Compel Independent Medical Examination of Brecidia Lopez and Jose Solis and for 14 Monetary Sanctions. 15 DATED: January 10, 2020 Respectfully Submitted, 16 BULLIVANT HOUSER BAILEY PC 17 18 By ./s/ Summer M. Smith__________________ Keith Gillette 19 Summer M. Smith 20 Attorneys for Defendants AMERIGAS PROPANE, LP; AMERIGAS 21 PROPANE, INC.; and AMERIGAS, INC. * s|: >1::)! 22 23 24 25 26 27 28 4844-4051-9344.1 36942/00009 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS 1 PROOF OF SERVICE Briceida Lopez, et al. v. Paul Bonifacio, et al. 2 San Mateo Superior Court No. 18CIV01696 3 I am employed in the City and County of San Francisco by the law firm of Bullivant Flouser Bailey (“the business”), 101 Montgomery Street, Suite 2600, San Francisco, CA 94104. 4 1 am over the age of eighteen (18) and not a party to this action. On January 10, 2020,1 served the document entitled: 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 6 MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS; AND FOR IMPOSITION OF MONETARY SANCTIONS 7 upon the following parties: 8 COUNSEL EMAIL ADDRESStESl 9 10 MATTHEW D. DAVIS mdavis@walkuplawoffice.com SPENCER J. PAHLKE spahlke@walkuplawoffice.com 11 Walkup, Melodia, Kelly & Schoenberger kbenzien@walkuplawoffice.com 650 California Street, 26* Floor ssaephan@walkuplawoffice.com 12 San Francisco, CA 94108-2615 vrose@walkuplawoffice.com Telephone: 415.981.7210 lmccombe@walkuplawoffice.com 13 Facsimile: 415.391.6965 14 Attorneys for: Plaintiffs BRICEIDA LOPEZ and JOSE SOLIS 15 SHAWN A. TOLIVER shawn.toliver@lewisbrisbois.com 16 julie.azevedo@lewisbrisbois.com JULIE M. AZEVEDO 17 Lewis Brisbois Bisgaard & Smith, LLP rose.chan@lewisbrisbois.com 2185 North California Boulevard, Suite 300 18 Walnut Creek, CA 94596 Telephone: 925.357.3456 19 Facsimile: 925.478.3260 Attorneys for: Defendants PAUL BONIFACIO and 20 MARGARET HYUN 21 JAMES T. HULTQUIST jhultquist@reedsmith.com 22 Reed Smith LLP dkirby@reedsmith.com 10 South Wacker Drive mchin@reedsmith.com 23 Chicago, IL 60606-7507 Telephone: 312.207.1000 24 Facsimile: 312.207.6400 Attorneys for: Defendant AMERIGAS PROPANE, LP 25 () BY MAIL (CCP §1013(a)): I am readily familiar with the ordinary practice of the 26 business with respect to the collection and processing of correspondence for mailing with the United States Postal Service. 1 placed a true and correct copy of the above-titled 27 document in an envelope addressed as above, with first class postage thereon fully prepaid. 1 sealed the aforesaid envelope and placed it for collection and mailing by the United 28 States Postal Service in accordance with the ordinary practice of the business. 4844-4051-9344.1 36942/00009 -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS 1 Correspondence so placed is ordinarily deposited by the business with the United States Postal Service on the same day. 2 (x) BY EMAIL OR ELECTRONIC TRANSFER: Pursuant to the parties’ stipulation to 3 electronic service, 1 caused a copy of the document to be sent from e-mail address roberta.beach@bullivant.com to the persons at the e-mail addressed listed in the service 4 list. I did not, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 5 () BY FACSIMILE TRANSMISSION (CCP S1013(el. CRC 2.3061: I transmitted the 6 document by facsimile transmission by placing it in a facsimile machine (telephone number 415-352-2701) and transmitting it to the facsimile machine telephone number 7 listed above. A transmission report was properly issued by the transmitting facsimile machine. The transmission was reported as complete and without error. A true and correct 8 copy of the transmission report is attached hereto. 9 0 BY OVERNIGHT DELIVERY (CCP S1013(cft: I am readily familiar with the ordinary practice of the business with respect to the collection and processing of correspondence 10 for mailing by Express Mail and other carriers providing for overnight delivery. I placed a true and correct copy of the above-titled document in an envelope addressed as above, 11 with first class postage thereon fully prepaid. 1 sealed the aforesaid envelope and placed it for collection and mailing by Express Mail or other carrier for overnight delivery in 12 accordance with the ordinary practice of the business. Correspondence so placed is ordinarily deposited by the business with Express Mail or other carrier on the same day. 13 0 BY PERSONAL SERVICE UPON AN ATTORNEY (CCP SlOlUaft: I placed a true 14 and correct copy of the above-titled document in a sealed envelope addressed as indicated above. I delivered said envelopes by hand to a receptionist or a person authorized to accept 15 same at the address on the envelope, or, if no person was present, by leaving the envelope in a conspicuous place in the office between the hours of nine in the morning and five in 16 the afternoon. 17 () BY MESSENGER SERVICE: I placed a true and correct copy of the above-entitled document in a sealed envelope addressed as indicated above and provided it to a 18 professional messenger service for delivery during normal business hours on this date. 19 0 BY PERSONAL SERVICE UPON A PARTY fCCP SlOlKbft: I placed a true and correct copy of the above-titled document in a sealed envelope addressed as indicated 20 above. I delivered each envelope by hand to a person of not less than eighteen (18) years of age at the address listed on the envelope, between the hours of eight in the morning and 21 six in the evening. 22 I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. 23 Executed on January 10, 2020, at San Francisco, California. 24 25 RcieteRTA c 6each 26 27 28 4844-4051-9344.1 36942/00009 -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATIONS AND FOR MONETARY SANCTIONS