Judge: Anne Hwang, Case: 23STCV23088, Date: 2024-10-23 Tentative Ruling

Case Number: 23STCV23088    Hearing Date: October 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

BACKGROUND

            On September 25, 2023, Plaintiff Jonathan Hernandez (“Plaintiff”) filed a complaint against Defendant Yvonne Rabiee (“Defendant”) and Does 1 through 50 for negligence regarding an alleged motor vehicle collision.

            Defendant now moves to compel Plaintiff to submit to an independent medical examination. Defendant also seeks monetary sanctions. An opposition was filed on October 14, 2024.[1] On October 16, 2024, Defendant filed her reply.

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).) 

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [“the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary”].) A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  And “[a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (Id. at p. 839.)   

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿¿ 

MEET AND CONFER

The Declaration of Dwayne S. Beck, counsel for Defendant, states the following: “In fact, Defense Counsel’s office contacted Plaintiff’s Counsel on June 5^th advising them that Plaintiff failed to appear at Dr. Kramer’s office. Defense Counsel then emailed correspondence to Plaintiff’s Counsel on June 6, 2024, with Dr. Kramer’s W-9 and no-show invoice and requested payment be forwarded to Dr. Kramer’s office as soon as possible. On June 6, 2024, Plaintiff’s Counsel responded that no payment would be forthcoming from his firm, and he would provide alternate dates as soon as he heard from his client. Defense Counsel advised that Plaintiff Counsel’s office confirmed their client’s appearance at the IME and unless Dr. Kramer’s no-show was paid, Defense Counsel would seek Court intervention. However, as of the date of this Motion, Plaintiff’s Counsel has not paid Dr. Kramer’s no-show fee nor has he provided any alternate date(s) for the client’s IME.” (Beck Decl. ¶¶ 7- 10.)

DISCUSSION

Defendant seeks to have Plaintiff examined by orthopedic physician, Dr. Sten Erik Kramer, a board-certified in Physical Medicine and Rehabilitation and Pain Management.

Here, Defendant has shown good cause for the medical examination. First, on April 29, 2024, Defendant served a Notice for an Independent Medical Examination (“IME”) for Plaintiff to take place on June 5, 2024, at 1:30 p.m., with Dr. Sten Erik Kramer in Newport Beach. (Beck Decl. ¶ 3.) On May 30, 2024, Plaintiff Counsel’s office confirmed Plaintiff attendance at the June 5^th IME. (Id. at ¶ 4.) However, Plaintiff failed to appear to the IME. (Id. at ¶ 5.)

In opposition, Plaintiff argues that this motion is moot because Plaintiff is ready, willing, and able to perform Defendant’s IME and awaits new dates from Defendant. (Opp. at p. 5.) Plaintiff’s counsel states that counsel did not hear from Plaintiff until October 8 and was informed that Plaintiff was ill on the day of the examination and did not have a ride. No explanation is given regarding why Plaintiff did not communicate with counsel or the doctor regarding the IME and no declaration is provided from Plaintiff that Plaintiff became ill that day. No timely objection was filed. Accordingly, the Court grants the motion.

Monetary Sanctions

            Since Plaintiff unsuccessfully opposed the Motion and provided no justification for not contacting counsel prior to the IME to reschedule, sanctions are warranted. However, it does not appear that Plaintiff’s attorney counseled the discovery abuse, and therefore the Court awards sanctions as to Plaintiff only. Moreover, the amount requested is excessive in light of the nature of the motion and because counsel can appear remotely at the hearing. Accordingly, the Court orders monetary sanctions in the amount of $3,361.65 (4 hours of attorney time, the filing fee, and the cancellation fee).

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Compel Plaintiff’s Attendance of a Medical Examination is GRANTED. Plaintiff is to appear for his IME within 30 days.

Plaintiff is ordered to pay monetary sanctions in the total amount of $3,361.65 to counsel for Defendant within 30 days of the date of this Court’s ruling.

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