Judge: Audra Mori, Case: 19STCV17123, Date: 2023-02-06 Tentative Ruling

Case Number: 19STCV17123    Hearing Date: February 6, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Karuna I. Tanahashi (“Plaintiff”) filed this action against Defendants, Diana G. Toumah and Dalal Toumah (collectively, “Defendants”) for damages arising out of a motor vehicle accident.  

At this time, Defendants move for an order compelling Plaintiff to appear for a physical examination with Ronald S. Kvitne, M.D. and for an order imposing sanctions on Plaintiff.  Any opposition to the motion was due on or before January 24, 2023.  To date, no opposition has been filed. 

2. Motion to Compel Plaintiff to Appear for Physical Exam

CCP § 2032.220 states:

(a) 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.

CCP § 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. 

Here, Plaintiff is claiming personal injuries as a result of the accident, and Defendants provide that on August 16, 2022, they properly served a demand for physical examination on Plaintiff setting the exam for October 10, 2022.  Defendants assert that Plaintiff did not object to the demand, but Plaintiff failed to appear for the exam.  Defendants then attempted to meet and confer with Plaintiff’s counsel regarding rescheduling Plaintiff’s exam, but Plaintiff’s counsel did not respond.  Defendants then served a second demand for physical examination on Plaintiff on November 7, 2022, setting Plaintiff’s exam for December 12, 2022.  Plaintiff again failed to appear for the exam.  The evidence shows that Defendants properly served Plaintiff with two notices for a physical exam, and that Plaintiff failed to appear for an examination. 

Therefore, Defendants’ unopposed motion to compel Plaintiff’s physical exam is granted. 

Plaintiff is ordered to appear for examination with Ronald S. Kvitne, M.D., Orthopedic Surgeon, at 2401 Huntington Drive, San Marino, CA 91108.  Counsel must meet and confer to determine the date and time for the examination; if Plaintiff does not meaningfully participate in the meet and confer process, Defendants may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff (extended per Code if by other than personal service).  The Court notes that Defendant has set forth the proposed scope of the examination, as well as the manner, conditions, and nature of the examination, in the prior demands served on Plaintiff, (Mot. Exhs. A, C), and that the scope of the examination may not be expanded in connection with the compelled physical exam. 

3. Sanctions

            Defendants also seek sanctions against Plaintiff.  CCP § 2032.250(b) requires the Court to impose sanctions in connection with a motion to compel physical exam unless the Court finds Plaintiff acted with substantial justification or other circumstances make imposition of sanctions unjust. 

            Plaintiff does not oppose the motion or otherwise provide any reason for why Plaintiff failed to appear for the noticed examinations.  Sanctions are warranted.  Defendants are awarded two hours for preparing the motion at the reasonable rate of $200 per hour for a total attorney fees award of $400.00.  Further, Defendants are awarded the no-show fee of $1,500 for Plaintiff’s failure to appear for the December 12, 2022 exam and the motion filing fee of $61.65 as costs.  

Sanctions are sought and imposed against Plaintiff.  Plaintiff is ordered to pay sanctions to Defendants, by and through counsel of record, in the amount of $1,961.65, within twenty days.

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 6^th day of February 2023