Judge: Anne Hwang, Case: 21STCV18471, Date: 2024-08-02 Tentative Ruling

Case Number: 21STCV18471    Hearing Date: August 2, 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

            Defendants Lillian Lugosi and Jeff Lugosi (“Defendants”) move to compel compliance with a demand for physical examination served on Plaintiff Anthony Lightfoot (“Plaintiff”). Defendants also seeks 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).)¿

“The plaintiff to whom a demand for a physical examination . . . is directed shall respond to the demand by a written statement that the examinee will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination.” (Code Civ. Proc. § 2032.230(a).)

“Within 20 days after service of the demand the plaintiff to whom the demand is directed shall serve the original of the response to it on the defendant making the demand, and a copy of the response on all other parties who have appeared in the action.” (Code Civ. Proc. § 2032.230(b).)

Code of Civil Procedure section 2032.240 provides that, when a plaintiff fails to timely respond to a demand, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. (Code Civ. Proc. § 2032.240(b).)

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and 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. § 2032.240(c).)

DISCUSSION

This case arises out of a motor vehicle accident. Defendants first noticed a demand for a physical examination with Dr. Paul E. Kaloostian on January 25, 2024, set for March 13, 2024. On March 11, 2024, Plaintiff’s counsel informed Defendants that Plaintiff would be unable to attend. (Feldman Decl. ¶ 6.) The parties later agreed on a May 7, 2024 examination, and the demand was re-noticed on March 27, 2024. (Id. ¶ 7–8, Exh. D.) On May 6, 2024, Defendants contacted Plaintiff’s counsel to confirm the examination, but no response was received. (Id. ¶ 9.) Plaintiff did not serve an objection and did not attend the examination. (Id. ¶ 10–11.) As a result, Defendants incurred a $750 no-show fee. (Id. ¶ 12, Exh. F.)

Therefore, because Plaintiff did not appear for the examination and failed to respond to the demand, the motion to compel compliance is granted.

Defendants seek $2,194 in monetary sanctions against Plaintiff and Plaintiff’s counsel. This represents an hourly rate of $250, the no-show $750 fee, and the $60 filing fee for this motion. In light of the nature of the motion and because it is unopposed, the Court awards monetary sanctions in the reduced amount of $1,185 (1.5 hour of attorney time, the $750 fee, and filing fee).

CONCLUSION AND ORDER

Accordingly, Defendants Lillian Lugosi and Jeff Lugosi’s motion to Compel Compliance with Demand for Physical Examination is GRANTED. Plaintiff Anthony Lightfoot shall appear for a physical examination with Dr. Paul E. Kaloostian within 15 days, unless Defendants stipulate otherwise.

Plaintiff Anthony Lightfoot and his counsel of record, jointly and severally, are ordered to pay $1,185 in monetary sanctions to counsel for Defendants within 30 days.

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