Judge: Audra Mori, Case: 19STCV36118, Date: 2022-08-19 Tentative Ruling

Case Number: 19STCV36118    Hearing Date: August 19, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Gonzalo Ortega Carillo (“Plaintiff”) filed this action against Defendants Henrik Hans Doll and Egon Grundmann (collectively, “Defendants”) for damages arising out of a motor vehicle accident. 

Defendants provide they have attempted to meet and confer numerous times with Plaintiff regarding his physical examination concerning his alleged injuries.  Most recently, on March 1, 2022, Defendants propounded a notice of physical examination, setting Plaintiff’s examination for April 5, 2022.  When Defendants contacted Plaintiff’s counsel requesting confirmation the exam would be going forward as scheduled, Plaintiff’s counsel stated that Plaintiff would not be attending but provided no explanation as to why.  Defendants aver that Plaintiff did not otherwise object to the to the exam demand. 

At this time, Defendants move to compel Plaintiff’s physical examination.  No opposition has been received.

2. Motion to Compel Physical Examination

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, the evidence shows that Defendants properly served Plaintiff with a demand for a physical examination, and that although Plaintiff did not object to the demand, Plaintiff failed to appear for an examination.  The motion is unopposed.

Therefore, Defendants’ motion to compel a physical exam of Plaintiff is granted. 

Plaintiff is ordered to appear for examination with Kenneth L. Nudleman, M.D. on August 24, 2022, at 12:00 p.m. at Santa Ana-Tustin Medical Center 801 North Tustin Avenue, Suite 304, Santa Ana, CA 92705.  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 demand for physical exam, and that the scope of the examination may not be expanded in connection with the compelled physical exam. 

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3. Sanctions

            Defendants also seek sanctions.  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. 

            In this case, sanctions are warranted.  Defendants are awarded one hour for preparing the motion and one hour for appearing at the hearing all at the reasonable rate of $160.17 per hour, for a total attorney fees award of $320.34.  Further, Defendants are awarded the motion filing fees of $60 as costs. 

Sanctions are sought and imposed against Plaintiff and his attorney of record, jointly and severally; they are ordered to pay sanctions to Defendants, by and through counsel of record, in the amount of $380.34, 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 19^th day of August 2022