Judge: Anne Hwang, Case: 23STCV06490, Date: 2024-11-08 Tentative Ruling

Case Number: 23STCV06490    Hearing Date: November 8, 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 Union 51 Venture LLC (Defendant) moves to compel Plaintiff Maria Isabel Mendoza Gonzalez’s (“Plaintiff”) appearance at a physical examination. 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

According to the declaration of Nancy Matthews Garber, after Plaintiff cancelled the first examination, Defendant informed Plaintiff of Dr. Alluri’s next available dates, but heard no response. (Garber Decl. ¶ 8-9.) While there is no clear meet and confer effort described following the second non-appearance, the record also does not show that Plaintiff attempted to cooperate with Defendant in scheduling this examination.

DISCUSSION

This case arises out of a slip and fall in an apartment complex. Plaintiff claims injuries to her head, neck, right arm, low back, right leg, right knee and right ankle. On July 15, 2024, Defendant noticed Plaintiff’s physical examination for August 20, 2024 with Dr. Ram Kiran Alluri, M.D. (Garber Decl. ¶ 3, Exh. A.) The notice stated that Defendant must be notified two business days in advance of the scheduled appointment about any cancellation or else a charge would be imposed. On August 19, 2024, Plaintiff informed Defendant that he would not appear. (Id. ¶ 4.) Defendant incurred the late cancellation fee. The demand was re-noticed for September 17, 2024, and Plaintiff again did not appear. (Id. ¶ 11, Exh. E.) Another cancellation fee was incurred.

Therefore, because Plaintiff has failed to appear for an independent physical examination, the motion to compel is granted.

Defendant seeks $2,420 in monetary sanctions against Plaintiff and her counsel, representing the two $780 cancellation fees, a $200 hourly rate, and the $60 filing fee. The Court finds sanctions are warranted, but the amount is excessive given the nature of the motion, lack of opposition, and fact Defendant can appear remotely at the hearing. Therefore, the Court awards monetary sanctions in the reduced amount of $1,920 (1.5 hours of attorney time, the cancellation fees, and filing fee).

CONCLUSION AND ORDER

Accordingly, the motion to Compel Plaintiff’s Compliance with Independent Medical Examination is GRANTED.  

The Court orders Plaintiff Isabel Mendoza Gonzalez to appear for a physical examination with Dr. Ram Kiran Alluri on December 3, 2024 at 3:30 p.m.

Plaintiff and her counsel of record, jointly and severally, are ordered to pay $1,920 in monetary sanctions to counsel for Defendant within 30 days.

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