Judge Anne Hwang, Case Number: 22STCV26092, Date: 2024-06-04 Tentative Ruling

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.

Defendants Yolanda Alatriste and Javier Alatriste (“Defendants”) now move to compel the physical examination of Plaintiff Rosalia Ajis (“Plaintiff”) with Jeffrey Korchek, M.D., an orthopedic surgeon. Defendants also seek monetary sanctions against Plaintiff and counsel. Plaintiff opposes. No reply has been filed.

“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).)

The Declaration of Kathy Schmeckpeper, Defendants’ counsel, states that after being informed that Plaintiff did not attend the March 27, 2024 examination, she emailed Plaintiff’s counsel, but received no response. (Schmeckpeper Decl. ¶ 19.) Defendants’ counsel also sent a meet and confer letter to Plaintiff’s counsel on April 12, 2024, advising they would move to compel, but would take it off calendar if Plaintiff attended an examination and paid the no-show fee. (Id. ¶ 21.) Therefore, the meet and confer requirement has been met.

This case arises out of an alleged motor vehicle accident. Defendant asserts that Plaintiff claims injuries to her neck, back, and shoulders. (Schmeckpeper Decl. ¶¶ 2–4.) Defendant first noticed Plaintiff’s physical examination for November 22, 2023. (Id. ¶ 5.) On November 13, 2023, Plaintiff objected based on unavailability. (Id. ¶ 6.) The parties met and conferred to reschedule. The examination was then set for December 13, 2023, based on Plaintiff’s availability. (Id. ¶¶ 7–8.) However, the examination did not occur because Plaintiff tested positive for COVID on December 13, 2023. (Id. ¶¶ 11–12.) Defendants incurred a $750 late-cancellation fee. The parties then agreed to an examination on March 27, 2024, and Defendants served a notice on January 18, 2024. (Id. ¶¶ 13–14, Exh. J.) Plaintiff served a response on February 6, 2024 stating she would submit to the exam. (Id., Exh. K.)

On March 25, 2024, Plaintiff’s counsel confirmed Plaintiff’s attendance. (Schmeckpeper Decl. ¶ 18.) However, on the date of the exam, Plaintiff did not appear, and Defendants were again charged $750. (Id. ¶¶ 19–20.) As a result, Defendants seek an order compelling Plaintiff’s attendance at her physical examination with Jeffrey Korchek, M.D. on June 26, 2024.

In opposition, Plaintiff recounts that previous examinations did not occur because Plaintiff was unavailable and then contracted COVID. Plaintiff argues she did not attend the March 27, 2024 examination because she contracted the flu. Plaintiff claims she reached out to Defendants’ counsel to reschedule, but no response was received. As a result, Plaintiff asks the Court to not award sanctions. However, no declaration is attached to the opposition, attesting to the facts above.[1] As a result, the Court will not consider the assertions as evidence without a declaration.

Therefore, because Plaintiff failed to attend the March 27, 2024 examination and it does not appear an exam has taken place, the motion to compel is granted.

Defendant seeks monetary sanctions for $2,115.51, based on the two $750 cancellation, no-show fees, a $160.17 hourly rate and the $60 filing fee. The Court finds sanctions are warranted since Plaintiff failed to appear. However, the amount is excessive given the type of motion and the fact counsel can appear remotely at the hearing. Therefore, the Court grants sanctions in the amount of $1,880.34 ($1,500 cancellation fees, 2 hours of attorney time, plus the filing fee).

Accordingly, Defendant’s Motion for Order Compelling Plaintiff Rosalia Ajis to Submit to a Physical Examination is GRANTED. Plaintiff Rosalia Ajis shall appear for an independent physical examination with Dr. Jeffrey Korchek on June 26, 2024 at 10:30 a.m.

The Court further grants monetary sanctions in the reduced amount of $1,880.34 against Plaintiff and her counsel, jointly and severally. Said monetary sanctions shall be paid to counsel for Defendants within 30 days.

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

[1] “ ‘In law and motion practice, counsel will frequently prepare a summary of facts in support of or in opposition to the motion. This may be part of a memorandum of points and authorities or consist of a separate statement of facts. Such a practice is useful as long as each fact mentioned is supported by admissible evidence and preferably if each such factual allegation is followed by an appropriate reference to the evidence accompanying the motion or opposition. However, absent such support in the evidence submitted, the court must disregard ‘facts’ contained in an unverified statement. [Citation.] The only evidence the trial court should have considered and which we may consider here is that contained in the declarations filed in support of and in opposition to the motion. The matters set forth in the unverified ‘Statement of Facts’ and in memoranda of points and authorities are not evidence and cannot provide the basis for the granting of the motion.” (Smith, Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573, 577–78.)

DEPT:	32
HEARING DATE:	June 4, 2024
CASE NUMBER:	22STCV26092
MOTIONS:	Motion for Order Compelling Plaintiff Rosalia Ajis to Submit to a Physical Examination
MOVING PARTY:	Defendants Yolanda Alatriste and Javier Alatriste
OPPOSING PARTY:	Plaintiff Rosalia Ajis