Judge: Anne Hwang, Case: 20STCV48002, Date: 2024-04-22 Tentative Ruling

Case Number: 20STCV48002    Hearing Date: April 22, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            On December 16, 2020, Plaintiff Douglas Da Silva McGlew (“Plaintiff”) filed a complaint against Defendants Fatameh Shamie, Mohammed Shamie, and Does 1 to 50 for injuries resulting from a motor vehicle accident.

            Defendants Fatameh Shamie and Mohammed Shamie (“Defendants”) now move to compel Plaintiff to appear for a physical examination. Defendants also seek monetary sanctions. No opposition has been filed.  

LEGAL STANDARD

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220, subd. (a).)¿¿ 

Code of Civil Procedure section 2032.250 provides that, when a plaintiff fails to respond to a demand, or refuses to submit to the physical examination, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. The motion must be accompanied by a meet and confer declaration.

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2032.250 (b).)

MEET AND CONFER

The Declaration of Edna Wenning does not detail an effort to meet and confer prior to filing this motion. Therefore, the meet and confer requirement has not been met.

DISCUSSION

Plaintiff has alleged physical injuries based on a motor vehicle accident. (Complaint ¶ 11–12.)

On December 12, 2023, Defendants served a Demand for Physical Examination on Plaintiff, setting an examination for January 31, 2024 with Brian Grossman, M.D., an orthopedic surgeon. (Wenning Decl. ¶ 3, Exh. A.) On January 24, 2024, Plaintiff’s attorney responded that Plaintiff could not attend. (Id. ¶ 5, Exh. B.) Plaintiff did not appear for the examination and did not serve an objection. (Id. ¶ 6.)

Plaintiff does not oppose this motion and therefore does not argue that the proposed examination is over 75 miles from his residence. Based on the Demand provided, the examination does not appear to contain any diagnostic test or procedure that is painful, protracted, or intrusive. (Exh. A.) Therefore, the motion to compel Plaintiff’s attendance at the physical examination with Dr. Grossman is granted.

Defendants seek $561.65 in monetary sanctions against Plaintiff and/or his counsel of record, representing a $250 hourly rate and the $61.65 filing fee. However, the Court denies the request for sanctions since no meet and confer took place.

CONCLUSION AND ORDER

Accordingly, Defendants Fatameh Shamie and Mohammed Shamie’s motion to compel Plaintiff to appear for a physical examination is GRANTED.  Plaintiff shall appear for an examination with Dr. Grossman within 30 days.

Defendants shall provide notice of the Court’s order and file a proof of service of such.