Judge: Anne Hwang, Case: 22STCV08708, Date: 2024-07-31 Tentative Ruling

Case Number: 22STCV08708    Hearing Date: July 31, 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

            Defendant Arakelian Enterprises Inc. (“Defendant”) now moves to compel Plaintiff Rayvaughn Embry’s (“Plaintiff”) appearance at a physical examination. Defendant also seeks monetary sanctions. Plaintiff’s counsel has filed a declaration in opposition. No reply 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 Taylor Stewart, Defendant’s counsel, states that after Plaintiff objected to the physical examination, Defendant attempted to meet and confer by calling, leaving a voicemail, and sending emails. (See Stewart Decl. ¶¶ 8–10.) However, Plaintiff failed to give a reason for the objection. Therefore, it appears Defendant attempted to reasonably resolve the issue.

DISCUSSION

Since filing this motion, the Court has continued trial and all related dates to November 12, 2024, pursuant to stipulation. (Order, 5//2/24.)

Plaintiff alleges physical injuries from a fall including a head laceration, pain to his shin, right leg, jaw soreness, swollen lips, neck pain, headaches, cognition difficulties, memory difficulties, dizziness, headaches and pinched nerves. (Stewart Decl. ¶¶ 2–3.)

As a result, Defendant seeks to have Plaintiff examined by Barry Ludwig, M.D., a board-certified neurologist. On March 12, 2024, Defendant’s counsel emailed Plaintiff’s counsel requesting available dates for an examination. (Stewart Decl. ¶ 4.) Plaintiff provided two available dates. (Id., Exh. C.) Thereafter, Defendant sent an examination notice for the agreed date of April 30, 2024. (Id., Exh. D.) However, on April 8, 2024, Plaintiff objected to the examination without stating a reason. (Id., Exh. E.) Defendant’s counsel asserts that despite repeated attempts to discern the reason for the objection, Plaintiff has not provided one.

The declaration by Plaintiff’s counsel in opposition, argues this motion should be denied because Plaintiff does not oppose attending the neurological examination with Dr. Ludwig. He further declares he will work with Defendant’s counsel to confirm a date within the next thirty days. (Forstrom Decl. ¶ 5.)

However, seeing that Plaintiff refused to submit for a noticed examination that was scheduled on a mutually agreed date and time, and failed to justify the objection, the motion to compel is granted.

Defendants seek $1,635 in monetary sanctions against Plaintiff, representing an hourly rate of $225, and the $60 filing fee.[1] (Stewart Decl. ¶ 13.) Because Plaintiff failed to justify the objection to the agreed upon examination date, and it appears Plaintiff did not respond to Defendant’s efforts to meet and confer, the Court finds sanctions are warranted, but the amount requested is excessive. Therefore, the Court awards $397.50 in monetary sanctions (1.5 hours of attorney time plus the filing fee).  

CONCLUSION AND ORDER

Accordingly, Defendant’s motion to compel Plaintiff’s physical examination is GRANTED. Plaintiff Rayvaughn Embry shall appear within 30 days’ notice of this order for a neurological examination with Barry Ludwig, M.D.

The Court further grants Defendant’s request for monetary sanctions in the reduced amount of $397.50 against Plaintiff. Said monetary sanctions shall be paid to counsel for Defendant within 30 days.

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