Judge: Audra Mori, Case: 20STCV18645, Date: 2023-02-22 Tentative Ruling

Case Number: 20STCV18645    Hearing Date: February 22, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Chinyere Duru, Iheaka Ezieme, and Orijulu Ezieme filed this action against Defendant David Ramirez for damages arising out of an automobile accident. 

At this time, Defendant moves to compel each of Chinyere Duru’s (“Duru”) and Iheaka Ezieme’s (“Ezieme”) physical examination.  Defendant also seeks an order imposing sanctions against Duru and Ezieme.  Defendant seeks to compel the exams per CCP § 2032.240.  No opposition was filed to the motions. 

2. Motions 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. 

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).)  Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)   

            a. Motion to Compel Duru’s Physical Exam

On October 3, 2022, Defendant propounded a demand for physical examination on Duru, setting Plaintiff’s examination for November 17, 2022.  (Mot. Exh. 1.)  Duru, however, did not appear.  Thereafter, Defendant attempted to meet and confer with Plaintiff about rescheduling a physical exam, but Plaintiff did not respond to the meet and confer attempts. 

The evidence thus shows that Defendant properly served Duru with a demand for a physical exam, and that Duru failed to appear for an examination. 

Therefore, Defendant’s motion to compel Duru’s physical exam is granted. 

Duru is ordered to appear for examination with Dr. Philip S. Yuan, M.D. at his office, which is located at Memorial Orthopedic Surgical Group, 2760 Atlantic Avenue, Long Beach, CA 90806.  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 examination, and that the scope of the examination may not be expanded in connection with the compelled exam.  Counsel must meet and confer to determine the date and time for the examination; if Duru does not meaningfully participate in the meet and confer process, Defendant may unilaterally set the date and time for the examination with at least ten days’ notice to Duru (extended per Code if by other than personal service). 

            Defendant also seeks sanctions.  CCP § 2032.240(c) requires the Court to impose sanctions in connection with a motion to compel physical exam unless the Court finds Duru acted with substantial justification or other circumstances make imposition of sanctions unjust.  In this case, sanctions are warranted.  Defendant is awarded one hour for preparing the motion and 0.5 hours for appearing at the hearing as it relates to this motion all at the reasonable rate of $200 per hour, for a total attorney fees award of $300.   

Sanctions are sought and imposed against Duru; Duru is ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $300 within twenty (20) days.

            b. Motion to Compel Ezieme’s Physical Exam

Defendant asserts that he noticed Ezieme’s physical examination for November 17, 2022, but Ezieme did not appear for the exam.  Although defense counsel’s declaration states that a copy of the notice of physical exam is attached as exhibit 1 to the motion, there is no Exhibit 1 attached to the motion to compel Ezieme’s physical exam.  The Court, thus, cannot review the sufficiency of the notice or confirm what it required of Ezieme. 

Therefore, the motion to compel Ezieme’s physical exam is denied.  The denial is without prejudice to Defendant re-filing the motion with a copy of the notice served on Ezieme. 

Defendant is 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 22^nd day of February 2023