Judge: Anne Hwang, Case: 22STCV19759, Date: 2024-08-23 Tentative Ruling

Case Number: 22STCV19759    Hearing Date: August 23, 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

MOTION

            On June 16, 2022, Plaintiff Johnnetta Fisher (“Plaintiff”) filed this action based on an alleged motor vehicle accident.   

             Defendant Edwin A. Pinto Hernandez dba Lesly’s & EM Trucking (“Defendant”) now moves to compel an independent medical examination of Plaintiff with Dr. Paul Kaloostian, a neurosurgeon. Defendant also seeks monetary sanctions against Plaintiff and counsel. Plaintiff’s counsel has filed a declaration in response. 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 Diana Abbasi, Defendant’s counsel, does not contain a detailed description of a meet and confer. Nevertheless, she states that she reached out to Plaintiff’s counsel multiple times following Plaintiff’s non-appearance in an effort to reschedule the examination. Defendant’s counsel has not received a response. (Abbasi Decl. ¶ 5–6.) Therefore, the meet and confer requirement has been met.

DISCUSSION

As an initial matter, the Notice of Motion states this motion is brought under Code of Civil Procedure sections 2032.310 and 2032.320. These sections pertain to seeking leave to conduct a physical examination other than the one physical examination under section 2032.220 or for a mental examination. However, the memorandum of points and authorities suggests this motion is brought to compel a physical examination under section 2032.250. (See Motion, 3–4.) Additionally, the Demand for the Examination, attached as Exhibit A to the motion, represents that this is a physical examination. Nowhere else does Defendant assert that a physical examination already took place and Plaintiff has not filed an opposition stating otherwise. While a court may generally only consider the grounds stated in the notice of motion, “[a]n omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought.” (Luri v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1125.) Therefore, since the papers show this motion is brought to compel an initial defense physical examination, the Court will consider this motion based on section 2032.250.

            Here, Defendant first noticed Plaintiff’s examination for February 27, 2024. (Abbasi Decl. ¶ 3, Exh. A.) On January 29, 2024, Plaintiff’s counsel confirmed her attendance. (Id. ¶ 4, Exh. B.) However, on the date of the exam, Plaintiff failed to appear. (Id. ¶ 5.)

            In the declaration filed by Plaintiff’s counsel (“Counsel”), Plaintiff does not oppose the examination. Instead, Plaintiff’s counsel states that Plaintiff failed to attend the February 27, 2024 examination because she works the graveyard shift as a security guard and mistakenly overslept. (Yazdanpanah Decl. ¶ 6.) Counsel also states that the parties subsequently scheduled another examination for July 2, 2024, but Plaintiff got lost and did not make it in time. (Id. ¶ 7-8.) As a result, Counsel argues the request for sanctions should be denied, pointing to the inadvertent failure to attend the examination and the fact she is not opposing the motion to compel.  

Here, the Demand for the Examination states this is a physical exam and will not include any diagnostic test or procedure that is painful, protracted, or intrusive. It is undisputed that Plaintiff did not appear for her noticed examination. Therefore, since Plaintiff did not appear at the examination, the motion to compel is granted. As a result, the Court declines to impose evidence sanctions.

Defendant seeks monetary sanctions for $600, representing Dr. Kaloostian’s cancellation fee, and $1,260 in attorney fees for bringing this motion, based on a $160 hourly rate and the $60 filing fee. However, given Plaintiff’s counsel declaration and the lack of reply by Defendant, the Court declines to award monetary sanctions, finding that Plaintiff has shown substantial justification.

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Compel the IME of Plaintiff Johnnetta Fisher is GRANTED. Plaintiff Johnnetta Fisher shall appear for an independent physical examination with Dr. Paul Kaloostian within 30 days of this order.

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