Levy v. Hanjin Internat

Filed 10/23/08 Levy v. Hanjin Internat. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed.

Law Offices of Jack R. Willis and Jack R. Willis for Plaintiff and Appellant.

Tharpe & Howell, James O. Eiler, Norman L. Pearl and Paul W. Burke for Defendants and Respondents.

_________________________________

Plaintiff and appellant Steven Levy appeals from a judgment dismissing his personal injury action against defendant and respondent Raymond Manuel Mata following an order granting a motion for a terminating sanction based on Levys failure to comply with a court-ordered psychiatric examination. Levy contends: 1) the trial court abused its discretion by awarding monetary sanctions and costs against an indigent party; 2) the trial court abused its discretion by awarding monetary sanctions against him in connection with the denial of his motion to compel further responses from Mata; 3) the psychiatric examination order was invalid under Code of Civil Procedure section 2032.320,^[1]because it was not based on a showing of exceptional circumstances and Levy had stipulated to withdraw his emotional distress claims; 4) the psychiatric examination order violated section 2032.320, because it was unlimited; 5) the trial court abused its discretion by ordering a psychiatric examination based on documents obtained in violation of Levys right to privacy; 6) the trial court abused its discretion by ordering monetary sanctions for failing to appear for the psychiatric examination; 7) the trial court abused its discretion by imposing a terminating sanction for a second failure to appear for a psychiatric examination, because the examination order was invalid and the trial court could have imposed a lesser sanction; 8) monetary sanctions awarded in connection with the terminating sanction were excessive, because defense counsel had sufficient notice of nonappearance; and 9) the trial court abused its discretion by imposing sanctions for failing to attend physical examinations. We conclude the psychiatric examination order met statutory requirements, and the trial court did not abuse its discretion as to any of the discovery and sanctions orders. Therefore, we affirm.

In addition, Levy raises contentions on appeal related to an order granting summary judgment in favor of defendant and respondent Ana Victoria Estrada and an order partially granting his motion to tax Estradas costs. We conclude Levys appeal is untimely as to these issues. To the extent Levys issues on appeal concern interlocutory orders in favor of defendant and respondent Hanjin International Corporation, individually and doing business as Wilshire Grand Hotel (Hanjin), we conclude the orders are not appealable, because Levy voluntarily dismissed his action against Hanjin.^[2]

FACTS AND PROCEDURAL BACKGROUND

Levy Institutes Legal Proceedings

On October 30, 2003, Levy participated in a demonstration against the mistreatment of animals that was held in front of Hanjins hotel. Hotel employee Estrada videotaped the demonstration. Hotel employee Mata made physical contact with Levy as the protestors were leaving the demonstration. On October 28, 2005, on Levys behalf, Attorney Jack Willis filed a personal injury action in forma pauperis against Hanjin, Estrada, and Mata. The complaint alleged that Levy is a developmentally disabled dependent adult, and he suffered injuries to his back, knees, and wrist as a result of defendants conduct.

On December 2, 2005, a messenger service attempted to serve Levys requests for responses to form interrogatories, special interrogatories, and a demand for production of documents on defendants. A hotel employee in the lobby refused to give the messenger service permission to enter the hotels business office. Instead, the employee directed the messenger to give the documents to the hotel concierge, who was employed as a bell captain at the hotel. Responses were due January 2, 2006.

On January 4, 2006, Willis wrote to defendants attorney, Anne Gregory, to inform her that responses had not been received. Defendants provided responses on January 6, 2006, including their objections. Willis wrote several meet and confer letters stating that the responses had been untimely, and therefore, defendants had waived any objections. Defendants provided supplemental responses and objected to certain interrogatories on the grounds that they were irrelevant, an invasion of privacy, or defendants lacked sufficient information to provide a response.

On February 6, 2006, each defendant served Levy with form and special interrogatories, and Hanjin served a request for production of documents.

Willis sent additional meet and confer letters requesting further responses to Levys discovery requests. On March 1, 2006, Gregory wrote a letter to Willis stating that Estrada and Mata would not provide supplemental responses to certain enumerated form interrogatories that were not relevant and invaded their privacy rights. However, defendants would provide supplemental responses to certain other form interrogatories as requested. Gregory refused to provide further responses to the special interrogatories because they erroneously referred to an arrest, were irrelevant, and invaded privilege.

An amended complaint filed on March 3, 2006, no longer referred to Levy as a developmentally disabled dependant adult. Levy provided responses to defendants special interrogatories on March 13, 2006. Norman Pearl, another attorney at Tharpe and Howell, apparently took over work on discovery matters in the case for defendants. Pearl sent a meet and confer letter to Willis stating the deficiencies of Levys responses to special interrogatories.

Levy Files Motions to Compel Further Responses

On March 17, 2006, Levy filed motions for orders compelling further responses to form interrogatories from defendants. Defendants had already agreed to provide further responses to several of the interrogatories to which Levy sought to compel responses. Levy also filed a motion to compel further production of documents from Hanjin. Defendants opposed the motions to compel on the following grounds: attempted service of the discovery requests on a bell captain at the hotel was unauthorized and ineffective; defendants attempted to provide responses in good faith and informed Willis that further responses were forthcoming; and Levy and Willis did not act in good faith by moving to compel responses in the face of defendants agreement to provide further responses. Each defendant requested sanctions against Levy and Willis of $1,125.

On April 19, 2006, Willis filed a reply informing the trial court that defendants supplemental responses to the form interrogatories had been received. Levy set forth a list of the remaining form interrogatories. On April 24, 2006, Levy provided supplemental responses to defendants special interrogatories.

At a hearing on April 25, 2006, the trial court found that the bell captain was not an authorized agent for acceptance of service of discovery as to any defendant. Therefore, defendants were not properly served and defendants responses properly contained objections. The trial court found defendants objections to the interrogatories valid. Several interrogatories propounded on Estrada and Mata were clearly inapplicable because they asked about injuries and damages claimed by the responding party. Levy was the only party seeking damages in the action. In addition, the motions were premature because the meet and confer process was ongoing. The trial court denied the motions to compel in their entirety without prejudice. The trial court ordered counsel to meet and confer, in person, on this dispute and all other discovery disputes prior to filing motions to compel. The trial court imposed sanctions against Levy and Willis, jointly and severally, in the amount of $500. The trial court acknowledged that the amount of sanctions was not commensurate with the offense, but its policy was to order a relatively low amount as a partys first sanction. The trial court noted that subsequent sanctions would escalate.

Defendants Counsel Attempts to Meet and Confer

On April 28, 2006, Pearl wrote a letter to Willis setting forth deficiencies in Levys supplemental responses to special interrogatories. Pearl proposed meeting prior to Estradas deposition set for May 2, 2006, or during the lunch break, to discuss Levys responses. On May 1, 2006, Pearl set forth deficiencies in Levys response to the document production request and asked Willis to meet and confer as to the supplemental responses to document production requests as well.

At Estradas deposition on May 2, 2006, Willis stated that he did not have time to meet and confer on the responses. He declined to set a meeting date. On May 3, 2006, Pearl wrote a letter to Willis suggesting the parties discuss discovery responses before or after Matas deposition was taken on May 9, 2006. However, if May 9, 2006, was not acceptable, Pearl offered to meet on May 17, 18, 22, or 29, 2006, at a location midway between their respective offices, such as the Long Beach Superior Courthouse.

On May 4, 2006, Willis sent a letter to defendants trial attorney, James Eiler, suggesting that they meet at Williss office on May 25, 2006, to discuss discovery responses. He offered to pay for lunch and asked if Eiler had any objection to mutual extensions for bringing motions.

Pearl explained that he was handling discovery matters, rejected the meeting date and location that Willis had proposed to Eiler, and asked for a response to the dates that he had proposed. At Matas deposition on May 9, 2006, Willis told Pearl that Levy would provide supplemental responses by the end of the week, and therefore, a meeting to confer about discovery issues was premature. On May 12, 2006, Willis wrote to Eiler, noting that he had not received a response to his letter and asking to be advised in writing if Eiler did not intend to be personally involved in discovery issues. Eiler told Willis that Pearl had full authority to negotiate the resolution of discovery matters.

On June 2, 2006, Pearl wrote to Willis that Levys second supplemental responses to requests for production of documents did not cure previous defects, improperly raised new objections, and continued to assert frivolous, boilerplate objections.

On June 5, 2006, Willis suggested the parties mutually agree to extend the June 13, 2006 deadline for motions to compel and meet in person after June 26, 2006. He stated that he would continue to provide supplemental responses as best he could. Pearl considered a meeting after June 26, 2006, unacceptable, because the trial date was in November. If the parties agreed to a reasonable extension of the deadline for motions to compel, Pearl offered to meet and confer with Willis on June 13, 14, 15, 16, 17, or 19, 2006.

On June 6, 2006, Willis wrote that all available information had been provided as to the interrogatories. On June 7, 2006, Willis explained his commitments during the week of June 12, 2006, and asked for a meeting on the afternoon of June 26, 2006. On June 8, 2006, Pearl rejected the proposed date again.

Defendants Motions to Compel Further Responses and Second Amended Complaint

On June 13, 2006, defendants each filed a motion to compel further responses to special interrogatories and requested monetary sanctions against Levy and Willis in the amount of $1,477.50.

That day, Levy filed a second amended complaint against defendants for negligence, battery, assault, and intentional infliction of emotional distress. The complaint alleged in pertinent part as follows. Mata and Estrada conspired to intimidate and physically assault the protestors. Estrada participated by accusing Levy of assault, which provided an excuse for Mata to attack Levy. Mata, as part of the policy and plan, shoved Levy from behind, without provocation or justification, and with sufficient force to make injury likely, knocking Levy to the ground. Estrada further participated and ratified the attack by deliberately halting videotaping of the event to cover it up. The intimidation and physical attack caused Levy to suffer severe physical and psychological harm, and denied his right to free political expression.

On June 16, 2006, Levy provided medical records in response to discovery requests. On June 20, 2006, Hanjin filed a motion to compel further responses to the request for production of documents and requested monetary sanctions against Levy and his counsel in the amount of $2,102.50.

Counsel for the parties agreed to meet on June 26, 2006, to discuss discovery issues. The agenda included production of Levys medical records, mental health records, and responses to interrogatories. On June 26, 2006, Levy filed an opposition to the motions to compel further responses to special interrogatories on the grounds that they were untimely, Levy had provided supplemental responses as requested, and the parties had not met and conferred in person.

On July 10, 2006, the trial court denied defendants motions to compel further responses without prejudice on the ground they were not timely filed. The trial court noted that Levys responses to special interrogatories were unintelligible and completely improper. Moreover, it was evident that Levy had refused to meet and confer in person in good faith. The trial court advised Levy to provide further supplemental responses and to meet and confer in good faith, because serious monetary sanctions would be imposed on the losing party and counsel if the motion were renoticed.

The same day, Pearl suggested meeting before or after the deposition of a witness if the case took place on July 20, 2006, to discuss discovery issues. Alternatively, he offered to meet on July 13, 14, 17, or 19, 2006.

On July 14, 2006, Levy filed an opposition to Hanjins motion to compel responses to the request for production of documents. He opposed the imposition of sanctions on the grounds that the volume of defendants discovery requests was in bad faith for purposes of harassment and Hanjins counsel had not met and conferred in person as required by the trial courts order. Levy did not otherwise oppose the motion to compel and stated that he would attempt to provide supplemental responses prior to the hearing date.

On July 18, 2006, Levy provided a third set of supplemental responses to the request for production of documents. Levy objected to requests to produce psychological damage records, because he intended to withdraw his claim for psychological damages. On July 18, 2006, Pearl offered to meet with Willis on July 19, 20, 21, 24, 25, or 26 in the late afternoon.

On July 20, 2006, Levy filed a notice of withdrawal of claim for emotional damages. The notice stated that Levy was withdrawing the request for emotional psychiatric damages except for those caused by the physical injuries herein.

Hanjins motion to compel further responses to the request for production of documents was heard on July 26, 2006. The trial court found that none of the responses that Levy had served prior to the motion to compel fully satisfied his obligations. Moreover, Levy failed to meet and confer in good faith on a timely basis. The trial court granted the motion and imposed sanctions of $2,102.50 on Levy and Willis, jointly and severally. However, the trial court advised Pearl to send a letter specifying the responses needed to comply with section 2030.220. Counsel for the parties were ordered to meet in person.

Motion for Summary Judgment as to Estrada

On July 27, 2006, Estrada filed a motion for summary judgment on the ground that Levy could not establish the elements of any of his causes of action against her. In support of the motion, Estrada submitted her declaration stating that she was employed as a security coordinator at the hotel. She videotaped part of the demonstration Levy attended. She was concerned about vandalism as the demonstration ended, and she followed some of the exiting protestors while videotaping. Two male protestors approached her quickly and made vulgar gestures close to her face with their middle fingers. One protestor wore a mask over the lower portion of his face; the other protestor was Levy. Estrada was afraid she was going to be physically attacked. She turned to leave and the confrontation ended. She did not threaten or touch any protestor. She never intended to cause emotional distress to any protestor, nor was she aware of anything she did that would cause emotional distress. She denied participating in any conspiracy, plan, or instruction to intimidate, harass, or harm any of the protestors or prevent them from lawfully expressing their opinions.

Defendants Motion for Psychiatric Examination and Production of Mental Health Treatment Records

Defendants subpoenaed Levys medical records from several medical providers, including Northridge Hospital Medical Center (Northridge) and County of Los Angeles, Department of Mental Health (the County). Levy sent notices to several medical providers, including the County, objecting to the production of any of his records related to any psychiatric condition or treatment and requesting that such records not be produced. He stated that psychiatric records could not be produced without the permission of the patient or a court order, neither of which had been provided. There is no evidence that Levy objected to Northridges production of medical records.

On August 14, 2006, Pearl took the position in a letter to Willis that despite Levys withdrawal of his emotional injury claim, his mental status and psychiatric history were relevant to his competence as a party and a witness, his state of mind when the assault occurred, exaggeration of injuries, and defendants affirmative defense that Levy was the aggressor. Pearl proposed a psychiatric examination by Dr. Richard Rappaport. In the event that Levy refused to release psychiatric records or submit to a psychiatric examination, Pearl requested a meeting to discuss the issues. He stated that he was available on August 15, 16, 18, 22, 23, or 24, 2006.

Counsel for the parties met and conferred on August 22, 2006. Levys counsel did not agree that Levys psychiatric records and present mental abilities had any relevance to the issues in controversy in the action.

On September 1, 2006, defendants filed a motion requesting an order to produce mental health treatment records and submit to a psychiatric examination by Dr. Rappaport on October 13, 2006, at 9:00 a.m., at an address in Beverly Hills. In defendants points and authorities in support of the motion, they stated the issues in controversy were: 1) Levys capacity to sue and to testify as a witness; and 2) psychiatric conditions that predisposed Levy to aggressive conduct. They argued his state mind at the time of the incident caused him to act aggressively, the primary causes of action alleged in the complaint were assault and battery, and defendants intended to plead self-defense/defense of others in their answer.

Pearl submitted his declaration in support of the motion. He stated that Levy disclosed in written discovery that he was hospitalized from November 22, 2003, through November 26, 2003, at a psychiatric facility at Mission Community Hospital, as a result of the incident at a cost exceeding $8,100. The medical bill submitted in discovery revealed several of the drugs that Levy was prescribed, including Depakote. Levys written discovery also revealed a history of psychiatric treatment from several other providers and private psychiatrists. Levys deposition was halted after six hours because Levy was mentally fatigued and unable to concentrate. Levy testified that he was mentally disabled, could not remember the date of the incident at the hotel, could not estimate the year of the incident, and could not identify where he was living at the time without knowing the date. In Pearls perception, Levy responded to questions inordinately slowly and frequently stared at Willis for lengthy periods before answering. Based on Levys conduct during his deposition, Pearl questioned his competency to pursue litigation without a guardian ad litem.

Pearl declared that he had subpoenaed mental health records from various providers who had refused to release psychiatric records after receiving Levys objection letters. Willis and Pearl met on August 22, 2006. Willis refused to stipulate to the release of Levys mental health treatment records or agree to a psychiatric examination. Willis stated that he wanted to consider the matter further, but would not agree to a deadline for a decision.

Defendants also submitted the expert declaration of Dr. Rappaport. Dr. Rappaport stated concern as to whether Levy was competent to recollect the event and understand the proceedings, as well as whether Levy had a compulsion to provoke confrontations in order to prosecute lawsuits for attention and gain. In addition, his opinion was that Levy suffered from psychiatric conditions that led to aggressive behavior. He noted that Depakote was indicated for treatment of manic and depressive episodes associated with bipolar disorders, and the typical symptoms of mania included poor judgment, aggressiveness, and hostility. Dr. Rappaport requested an opportunity to conduct a classical psychiatric examination, which will include questions and answers about his background, education, employment, social and family history, as well as information about his history in the legal system.

Defendants submitted the following documents that Dr. Rappaport had reviewed and relied upon in forming his opinions. A report from a Drivers Preparation Program at Northridge that Levy participated in from July to October, 2003, concluded that Levy was not an appropriate candidate to continue driver training. Even if he could improve his mechanical skills sufficiently, Levy had stated that he could not stop himself from doing something dangerous if another driver made him mad.

A 1993 Northridge emergency room record stated that Levy was at a fur protest at a department store, he was asked to leave, and the security guard grabbed him by the right wrist. Levy stated that he had an operation on the wrist in 1987 requiring a bone graft. After an X-ray was negative, Levy was given a splint.

A 1998 Northridge emergency room record stated that Levy came in for shin pain. He said he was kicked in the shin by a watch commander at a police station. His lawyer had advised him to come into the emergency room. The author of the report noted that Levy was obese and slow to respond.

A November 2003 declaration from Willis filed in Levy v. Quick, Los Angeles Superior Court case No. BC256816, stated that Levy is a developmentally disabled adult whom Willis has attempted to assist, mostly pro bono, with numerous problems. A June 2003 declaration by Willis stated that he has represented Levy in numerous matters for approximately 10 years and observed that Levy does not understand what he reads. Willis attached the declaration of a psychiatrist who had diagnosed and treated Levy which had been prepared for use in another lawsuit. A 2002 declaration from Dr. Victor Reyes stated that he has treated Levy, and Levy is not competent to contract pursuant to Civil Code section 38.

A June 2003 arrest report stated park rangers at the Los Angeles Zoo observed a group of protestors standing in front of patrons and blocking their entry to the zoo. The park rangers stated the protestors refused to relocate to an area that would not interfere with zoo traffic. The park rangers observed Levy to be aggressive in his approach of zoo patrons, by physically blocking their path and using a loud, threatening tone. As park rangers attempted to speak to Levy, a person named Jerold Friedman approached the conversation and refused to step back, preventing the rangers from continuing their duties. As Friedman was arrested for obstructing and delaying a police officer, a park ranger observed Levy suddenly charge at the ranger handcuffing Friedman with an enraged look on his face. Levy was pulled away and taken into custody. Levy complained of pain in his right wrist and was treated at Glendale Adventist Hospital. Levy spontaneously told one of the park rangers that he protests for a living. He repeatedly and spontaneously boasted to the park rangers that he has been arrested over 30 times at animal rights demonstrations and has filed numerous excessive force/false arrest civil lawsuits.

Williss 2004 declaration in a criminal action against Levy stated the charges should be dismissed after a probation period if Levy gets treatment from the Los Angeles County Department of Mental Health.

Defendants submitted four documents that may identify psychiatric conditions: a 1998 Northridge emergency room record that contained Levys medical history and medications; a 1999 Northridge history and physical examination record that contained past medical history; a 2000 Northridge mental health institutes initial clinical evaluation form; and a 2004 letter from a psychiatric social worker at the County that may have been part of the public record in a criminal proceeding.

Subsequent Events and Proceedings

On September 18, 2006, Levy failed to appear for a physical examination with Dr. James London scheduled by defendants, because he forgot to schedule transportation in advance with a service that provides transportation for the disabled.

Defendants received Levys opposition to their motion for an order compelling a psychiatric examination and production of psychiatric records, but the opposition was not filed with the court. Levy argued that a psychiatric examination could not be ordered, because: 1) he was not claiming emotional damages in excess of those caused by physical injuries; 2) no good faith effort had been made to meet and confer; and 3) the exhibits submitted in support of the motion were knowingly obtained in violation of Levys right to privacy, as defendants knew Levy had advised all of the providers not to release mental health records without a court order or his permission. Levy argued there was no evidence suggesting he lacked competence, other than a lack of capacity to contract.

On September 19, 2006, defendants filed a reply to the motion for psychiatric records and examination. Pearl declared that most of the exhibits supporting the motion were provided as part of Levys medical chart subpoenaed from Northridge. He argued the medical records were not psychiatric treatment records. In addition, Levy received notice of the subpoenas and did not file motions to quash them. Pearl filed the motion because he has not been able to obtain psychiatric treatment records from medical providers.

Levys opposition to the motion for an order compelling psychiatric examination and psychiatric records was filed on September 22, 2006.

A hearing was held on September 26, 2006. The trial court stated that no opposition had been received, and therefore, defendants reply had not been considered. The trial court found good cause had been shown to compel a psychiatric examination based on the evidence showing Levys history of violent confrontations remarkably similar to the confrontation alleged in the instant action and prior treatment for injuries remarkably similar to the injuries alleged in this case. The trial court found there was doubt as to whether Levy is mentally competent as a party and a witness based on the evidence that during his deposition, Levy was unable to recall basic details of the incident, including when it occurred and where he was living at the time. The trial court also found that whether the plaintiff was the aggressor was at issue in an assault case. Expert opinion showed Levy demonstrated psychiatric problems that might predispose him to aggressive and violent conduct, tending to show that he was the aggressor. Levys psychiatric records were directly relevant to the issues of Levys competence and a determination of who was the aggressor in the incident. Willis admitted at the hearing that he did not know how defendants had obtained the records submitted in support of the motion. The trial court granted the motion and ordered Levy to appear for a psychiatric examination by Dr. Rappaport within 20 days. Willis asked for a stay, in order to file a writ petition. The trial court denied the request for a stay and ordered the parties to meet and confer on a mutually convenient date within the 20 days. The trial court also continued the trial date to January 30, 2007, to allow defendants to investigate Levys multiple similar incidents and determine whether he qualified as a vexatious litigant.

On September 29, 2006, Levy opposed Estradas motion for summary judgment on the grounds that the evidence was sufficient to create a triable issue of fact as to whether Estrada conspired with the other defendants to commit a tort and, therefore, was liable as a joint tortfeasor by operation of law. He submitted a draft transcript of Estradas deposition testimony in which she acknowledged that neither of the protestors who approached her had touched her, but that at some point while the videotaping was in progress, she had said, They hit me. Levy also submitted the deposition testimony of a witness who saw Mata approach Levy and heard Mata say, Ive had enough of your shit, and shoved Levy.

On October 5, 2006, Estrada filed a reply and submitted Pearls declaration stating that it was clear from the videotape played during the deposition that Estradas statement was made after the altercation. A hearing was held on October 11, 2006. The trial court ruled that there was no evidence that Mata heard Estradas statement or believed it. The trial court granted Estradas motion to strike draft transcripts attached to the opposition. The trial court granted Estradas motion for summary judgment. Judgment was entered in favor of Estrada on October 25, 2006. Notice of Entry of Judgment was served on Levy by mail on November 15, 2006.

A physical examination scheduled for October 11, 2006, was postponed at Levys request to October 27, 2006. Levy called to schedule transportation to the examination the day before the trip as required, but he did not have the correct address. The person making the reservation put in Los Angeles and told him to call back with the correct address. Levy later told the service that the address of the appointment was in San Pedro. However, when the driver arrived to pick him up, the address was still listed as Los Angeles and the driver had several riders to drop off before Levy. Dr. London could not hold Levys appointment for an hour.

On October 30, 2006, Hanjin and Mata filed a motion for contempt of court against Levy for failing to comply with the trial courts order to submit to a psychiatric examination within 20 days. They requested monetary sanctions of $2,040 against Levy and Willis, and a terminating sanction. Pearl submitted a declaration stating that he attempted to schedule the examination, but Willis refused to cooperate with the order until a petition for a stay and writ had been denied by the appellate court. Pearl told Levys attorney that the examination would remain set for October 13, 2006. On October 11, 2006, the appellate court denied the stay request of the psychiatric examination. On October 13, 2006, Levy failed to appear for the psychiatric examination with Dr. Rappaport. On October 18, 2006, the appellate court denied Levys petition for a writ of mandate. Counsel for the parties met to discuss the psychiatric examination on October 23, 2006. Willis proposed dates in December, which Pearl considered too late. Moreover, Pearl objected to Williss stated intent to attend the examination. Levy was present at the discussion and stated that he would not answer any questions at the examination. Levy opposed the contempt motion on a variety of procedural grounds.

Hanjin made a settlement offer pursuant to section 998 that required Levy to dismiss the action against Hanjin in exchange for a waiver of costs and any right to sue for malicious prosecution. Levy accepted the offer and filed a request for dismissal as to Hanjin that was entered on November 3, 2006.

On November 13, 2006, Mata filed a motion to compel Levy to submit to a physical examination and for monetary sanctions of $1,540 against Levy and his attorney. Dr. London could not reschedule the examination before December 18, 2006. Levy filed an opposition only as to Matas request for sanctions.

On November 16, 2006, Levy filed a motion to vacate the September 26, 2006 order requiring him to submit to a psychiatric examination. Levy argued that his opposition to the motion to compel the examination was timely filed, but not recorded by the court clerk until September 22, 2006. In addition, he argued that a psychiatric examination should not be ordered based on improperly obtained records. Levy submitted the declaration of messenger service employee who declared that he was assigned to file the opposition to the motion on September 13, 2006. He declared that it was his habit and custom to leave filings in a basket if the clerk was not present and I am informed and believe that is what I did on or about September 13, 2006. He declared on information and belief that the clerks office was moving and filing was backlogged, which was why the opposition was not stamped received until September 22, 2006.

Mata opposed the motion on the ground that it was an untimely motion for reconsideration, and moreover, exceptional cause existed for a psychiatric examination and release of mental health records. Records obtained pursuant to the trial courts order revealed that Levy was committed for psychiatric observation 23 days after the incident in this case because he had stopped taking anti-psychotic medication two or three months earlier and was deemed to be a danger to himself and others.

Estrada filed a memorandum of costs. On December 5, 2006, Levy moved to tax costs because Estrada had not differentiated between her costs and the costs of all defendants.

A hearing was held on December 7, 2006. The trial court found that Levys excuses for failing to appear at the scheduled appointments, namely that he forgot and his bus was late, would not typically be sufficient to avoid sanctions. However, the trial court accepted Levys counsels argument that Levys forgetting the appointment was related to Levys mental disability, and although disability was not an excuse, Levys mental disability was a mitigating factor. Therefore, the trial court allowed Levy to rely on his mental disabilities to excuse his failure to appear one time and declined to impose sanctions in connection with the motion, but clearly stated that if Levy did not follow through with his obligations, the trial court would dismiss the case. The trial court granted Matas motion to compel Levy to submit to a physical examination and set the examination for December 18, 2006.

On December 8, 2006, Levy filed a reply concerning the motion to vacate the order for psychiatric examination. A hearing was held on December 12, 2007. The trial court deemed the motion to vacate to be a motion for reconsideration. The trial court noted that a motion to vacate under section 473, subdivision (b), would not apply to a discovery order. The trial court found the motion was untimely because Levy waited until after the appellate courts rulings before filing the motion, and it did not meet procedural requirements. Moreover, there was no satisfactory explanation for failing to produce evidence earlier. A declaration from a messenger that he is informed and believes that he filed Levys opposition to the underlying motion on September 13, 2006, is inadequate to show the motion was actually filed on September 13, 2006. The trial court denied the motion to reconsider.

The trial court deemed the motion for contempt to be a motion for terminating sanctions based on Levys refusal to comply with the trial courts discovery order and/or for monetary sanctions and an order requiring Levy to appear for a psychiatric examination as previously ordered. The trial court found that Levy had failed to meet his legal obligations as a party to the lawsuit and the only sensible sanction was a terminating sanction. However, the trial court refused to impose a terminating sanction until Levy had been provided a final opportunity to comply. The trial court ordered Levy to appear for an examination by Dr. Rappaport on December 14, 2006, and to answer questions during the examination. Levys counsel could not be present in the room, but could wait in an adjoining room. If Levy failed to comply, the trial court notified him that dismissal with prejudice might be the only reasonable sanction. In addition, the trial court imposed a monetary sanction in the amount of $1,040 on Levy and his counsel, jointly and severally.

On December 12, 2006, Levys counsel faxed a notice to Pearl stating that Levy would not appear at the court ordered psychiatric examination set for December 14, 2006, because the order was invalid, obtained by the use of illegally obtained privileged psychiatric records, and based upon a finding of good cause, rather than exceptional circumstances pursuant to section 2030.320. Pearl faxed a letter urging Levys counsel to comply with the trial courts order and stating that arrangements had been made for the examination that could not be undone. Levys counsel replied that Pearl should tell Dr. Rappaport to reschedule his activities, because Levy would not appear.

On December 19, 2006, Mata filed a motion for a terminating sanction and/or other sanctions, including a monetary sanction of $6,290 against Levy and his attorney, based on Levys two failures to appear for his court-ordered psychiatric examination. In support of the motion, Mata submitted Pearls declaration stating that no other sanction could adequately protect Mata, with so little time remaining before trial. He also declared that none of the monetary sanctions imposed had been paid, as Levys attorney claimed to have no funds and Levy was prosecuting the action in forma pauperis.

On December 27, 2006, Levy filed an opposition to the motion for terminating sanctions. Mata filed a reply. A hearing was held on January 9, 2006. The trial court found Levy had effectively abandoned the lawsuit and no lesser sanction would result in his compliance with his discovery obligations. The trial court granted the motion for terminating sanctions and ordered the action dismissed with prejudice. In addition, the trial court imposed a monetary sanction of $6,290 against Levy.

The motion to tax Estradas costs was heard on January 11, 2007. The motion to tax costs was granted as to filing fees and denied in all other respects. On January 12, 2007, Estrada served Levy by mail with a file-stamped notice of ruling on the motion to tax costs and a file-stamped copy of the amended memorandum of costs.

On January 31, 2007, the trial court entered a judgment of dismissal of the action and awarded Mata his costs. On April 2, 2007, Levy filed a notice of appeal from the decisions of this Court adverse to Plaintiff, and from the Judgment entered on January 31, 2007[.]

DISCUSSION

Standard of Review

We review discovery orders under the abuse of discretion standard, setting aside such an order only where it has been demonstrated that it is irrational. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533; People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1186.) Discretion is abused when the trial court exceeds the bounds of reason considering all the circumstances before it. (Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 369.)

Timeliness of Appeal as to Orders in Favor of Estrada

Levy filed a notice of appeal on April 2, 2007, from the trial court decisions adverse to him and the January 31, 2007 judgment. Levys appeal is untimely as to the trial court rulings in favor of Estrada that are raised in his brief.

The trial court entered judgment in favor of Estrada on October 25, 2006, and notice of entry of judgment was served on Levy by mail on November 15, 2006. Unless otherwise provided by law, a notice of appeal must be filed on or before the earliest of three dates: (1) 60 days after the court clerk serves a notice of entry of judgment or a file-stamped copy of the judgment on the appealing party, (2) 60 days after the appealing party serves or is served by the opposing party with a notice of entry of judgment, or (3) 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a).) (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 221-222.) Levys April 2, 2007 notice of appeal was untimely as to the October 25, 2006 judgment in favor of Estrada.

Levys notice of appeal was also untimely as to the ruling on his postjudgment motion to tax Estradas costs, because a file-stamped copy of the notice of ruling and amended memorandum of costs was served by mail on January 12, 2007.

Appealability of Orders in Favor of Hanjin

Levy voluntarily dismissed his action against Hanjin on November 3, 2006. Ordinarily, a voluntary dismissal terminates the action and the appellate court has no jurisdiction to review interlocutory orders made prior to the dismissal. (Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342-1343; Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975.) The appellate court will treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012.)

In this case, Levy did not voluntarily dismiss the main action against Hanjin in order to expedite an appeal. This court has no jurisdiction to review interlocutory orders in favor of Hanjin made prior to the dismissal. On appeal, Levy contends the trial courts award of sanctions against him for Hanjins motion to compel further responses to specific interrogatories was excessive. The record is clear that the trial court denied defendants motions to compel further responses to special interrogatories as untimely, and the trial court did not impose monetary sanctions in connection with those motions. The trial court granted Hanjins motion to compel further responses to a request for production of documents and imposed monetary sanctions, but the interlocutory order in favor of Hanjin is not reviewable.

Sanctions Imposed Against an Indigent Party

Levy contends the trial court abused its discretion by imposing any monetary sanctions or costs against him, because he is indigent and the orders were idle acts. We disagree.

Levy instituted this action, yet failed to comply with his discovery obligations, all at great expense to defendants. Had Levy recovered damages, defendants could have offset Levys recovery with the amounts awarded to defendants based on his discovery abuses. Government Code section 68511.3 provides that a litigant proceeding in forma pauperis has an obligation to notify the court within five days of any settlement or monetary consideration in the litigation, or any other change in financial circumstances that affects the litigants ability to pay court fees and costs, and the trial court may then order the litigant to pay the sum to the court in a manner compatible with the litigants financial ability. Levy could experience a change in financial circumstances that allows Mata to collect the amounts he was awarded for sanctions and costs. Mata was entitled to recover his costs as the successful party, and the trial court did not have discretion to relieve Levy of those costs. (See Sutter County v. Superior Court (1966) 244 Cal.App.2d 770, 772-773.) It was not an abuse of discretion to order monetary sanctions and costs simply because Levy was indigent and proceeding in forma pauperis.

Monetary SanctionsDenial of Motion to Compel Further Responses

Levy contends the trial court abused its discretion by awarding monetary sanctions against him in connection with his motion to compel further responses from Mata. We disagree.

The trial court did not abuse its discretion in ordering a total of $500 in monetary sanctions in connection with the denial of four separate motions to compel. The record shows the motions to compel were premature, because Matas counsel had agreed to provide several additional responses. The trial court found Levys service of discovery requests was improper, and therefore, Mata did not waive objections. The trial court also found Mata had meritorious objections to the remaining interrogatories, which were clearly inapplicable. The trial court emphasized the obligations of counsel to meet and confer in person in order to resolve discovery disputes, but the trial court did not deny the motion based on a failure to meet and confer. Mata was entitled to an award of monetary sanctions for successfully opposing the motion, and the amount of the sanction was insignificant compared to the cost to prepare the opposition. There was no abuse of discretion.

Order for Psychiatric Examination

A. Evidentiary Showing Required from Moving Party

Levy contends that he withdrew his claim for emotional damages in accordance with section 2032.320, and therefore, the trial court could not order a mental examination except upon a finding of exceptional circumstances. We conclude that Levys notice did not meet the requirements of section 2032.320, and therefore, the trial court properly required a showing of good cause to order the mental examination.

A party seeking an order compelling another party to submit to a mental examination must establish that the other partys mental condition is in controversy in the action ( 2032.020, subd. (a)) and that good cause for the examination exists ( 2032.320, subd. (a)). (Vinson v. Superior Court, supra, 43 Cal.3d 833, 838 [allegation of continuing mental distress supports order for mental exam]; Schlagenhauf v. Holder (1964) 379 U.S. 104, 118 [interpreting Fed. Rule of Civ. Proc., rule 35, on which section 2032 was patterned], Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1886-1887 [mental exam not permitted where plaintiff does not claim she is currently suffering mental distress].)

If a party stipulates that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed ( 2032.320, subd. (c)(1)) and no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages (id., subd. (c)(2)), the trial court may not order a mental examination of an injured person on whose behalf recovery is being sought except on a showing of exceptional circumstances (id., subd. (b)).

In this case, Levys notice of withdrawal of his claim for emotional damages did not satisfy the requirements for a stipulation under section 2032.320, subdivision (c). Levys notice stated that he was withdrawing his claim for emotional damages except for emotional damages caused by his physical injuries. He did not expressly state that his emotional distress from physical injuries was the usual emotional distress associated with these injuries, nor did he state that expert testimony would not be presented at trial on the issue. Because Levys stipulation did not meet the statutory requirements of section 2032.320, the trial court properly evaluated the motion based on the good cause standard.

In Levys reply brief, he contends that his notice of withdrawal was made pursuant to section 2032.310, and therefore, incorporated its terms. This is inaccurate. The notice does not refer anywhere to sections 2032.310 or 2032.320.

B. Contents of Order

Levy contends the order for a psychological examination was overbroad, because it did not contain information required by statute. We disagree.

An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. ( 2032.320, subd. (d).)

If the written notice of motion for a mental examination sets forth each of the particulars required by section 2032.320, then the failure of the order to repeat all of the particulars does not render the order defective per se. (See Bittle v. Superior Court (1976) 55 Cal.App.3d 489, 494-495 [interpreting former 2032, subd. (a) as applied to physical exams].)

Diagnostic tests and procedures are not required to be stated in a notice of motion to compel a mental examination ( 2032.310), but section 2032.320 requires the trial court to list diagnostic tests and procedures to be employed in the mental examination in the order. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 269.) Therefore, if the trial court fails to list diagnostic tests and procedures in the order for a mental examination and the motion papers do not name the procedures to be employed, the order must be vacated. (Id. at pp. 269-270.)

In this case, the trial courts order for a psychiatric examination, in conjunction with the notice of motion, was sufficient. All of the particulars of the examination were stated in defendants notice of motion. Although no diagnostic tests or procedures were specified in the notice of motion, it was clear from Dr. Rappaports declaration that no diagnostic tests or procedures were contemplated as part of the examination. Rather than order the examination on the date specified in the notice of motion, the record is clear that the trial court ordered the examination to take place within 20 days to allow counsel to choose a mutually convenient date, after Levys counsel expressed an intent to file a writ petition, and without objection by Levys counsel to the lack of specificity. (Cf. Bittle v. Superior Court, supra, 55 Cal.App.3d at p. 495 [order to conduct an examination after 30 days was made without objection to accommodate examinees counsels prior commitments and desire to file a writ petition].)

C. Documents Supporting Motion for Psychiatric Examination

Levy contends the documents supporting the motion for psychiatric examination were improperly obtained, and therefore, it was an abuse of discretion for the trial court to order the examination based on the documents. We disagree.

It is clear from the record that the trial court received no opposition to the motion for a psychiatric examination, and Levys motion for relief from his failure to file a timely opposition was denied. Having received no objection to the order, we cannot say the trial court abused its discretion in ordering the examination based on the supporting documents. In addition, defendants stated the documents they submitted in support of the motion were obtained through discovery and public sources of information. There is no evidence that Levy objected to Northridges production of his medical records. Other documents referring to Levys psychiatric treatment or condition were supplied by Levy in discovery or filed by Levy in connection with other legal proceedings. Levy has not identified any document that he contends defendants received from a medical provider in violation of his directions. In fact, Levy admitted that he does not know how defendants obtained the supporting documents. We note that ample good cause existed for a psychiatric examination order based solely on documents that contained no medical information.

On the competency issue, defendants submitted their own attorneys observation that Levy could not recall basic facts about the lawsuit and his personal history. Levy previously alleged and stated in his deposition that he was developmentally disabled. They also submitted declarations filed in other lawsuits stating that Levy lacked competency to contract and did not understand things that he read. Based on this evidence, it was not outside the bounds of reason for the trial court to find good cause to order a psychiatric examination on the issue of Levys competency to prosecute the action and testify as a witness.

On the issue of Levys predisposition to act aggressively due to mental health conditions, defendants also submitted more than enough evidence to constitute good cause for an examination. Levy filed an assault action and defendants represented in good faith that they intended to file an answer alleging an affirmative defense of self-defense/defense of others. Evidence submitted to the court in connection with Estradas motion for summary judgment suggested that Levy had acted aggressively toward Estrada. Defendants submitted a summary from a drivers preparation course stating that Levy should not have a drivers license because he could not keep himself from acting on negative, aggressive impulses. They submitted an arrest report in which Levy told park rangers that he had been repeatedly arrested for similar behavior and claimed similar injuries. The trial court did not abuse its discretion by finding good cause had been shown for a psychiatric evaluation based on documents received in discovery and public documents.

D. December 12, 2006 Sanctions Order

Levy contends the December 12, 2006 order of monetary sanctions against him for failing to comply with the court-ordered psychiatric examination was an abuse of discretion, because the examination order was invalid and his noncompliance was not his fault. However, as discussed above, the psychiatric examination order was valid. It is also clear from the record that Levy was aware the trial court had ordered a psychiatric examination and he refused to cooperate with his discovery obligations.

E. January 9, 2007 Sanctions Order

Levy contends the trial court abused its discretion by ordering a terminating sanction based on his failure to appear for the court-ordered psychiatric examination, because the psychiatric examination order was improper and the trial court could have imposed a lesser sanction. Levy also contends the monetary sanctions awarded in conjunction with the terminating sanction were excessive, because Mata had sufficient notice of nonappearance to cancel the appointment with the doctor. We find no abuse of discretion.

As discussed above, the order to submit to a psychiatric examination was proper. The trial court did not abuse its discretion by declining to impose a lesser sanction. The issues in controversy were Levys competency to prosecute the action and testify as a witness, and his predisposition to incite confrontation. An issue or evidentiary sanction would have had the effect of a terminating sanction. Because Levy refused to appear for examination, Mata could not go forward with the case and he could not compensate for the lack of an examination with other measures at trial.

The monetary sanctions imposed were not excessive. Costs for the psychiatric examination were incurred prior to Levys notice that he would not appear. Dr. Rappaport charges for cancellations within less than 48-hours. Moreover, Pearl continued to try to convince Levy and his counsel to appear for the scheduled examination. The trial court did not abuse its discretion by ordering terminating and monetary sanctions for Levys consecutive failures to appear for court-ordered psychiatric examinations.

No Sanctions Imposed for Failure to Attend Physical Examinations

Levy contends the trial court abused its discretion by awarding monetary sanctions against him for failing to attend physical examinations. However, the record is clear that the trial court did not impose sanctions on Levy for his failure to attend physical examinations. In fact, the trial court relied on Levys disability as a mitigating factor to avoid imposing sanctions that would have otherwise been justified.

DISPOSITION

The judgment is affirmed. Respondents Raymond Manuel Mata, Ana Victoria Estrada, and Hanjin International Corporation, individually and doing business as Wilshire Grand Hotel, are awarded their costs on appeal.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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