Judge: Audra Mori, Case: 20STCV18645, Date: 2023-03-07 Tentative Ruling

Case Number: 20STCV18645    Hearing Date: March 7, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

CHINYERE DURU, ET AL.,

                        Plaintiff(s),

            vs.

 

DAVID RAMIREZ, ET AL.,

 

                        Defendant(s).

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      CASE NO: 20STCV18645

 

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL PHYSICAL EXAMINATION

 

Dept. 31

1:30 p.m.

March 7, 2023

 

1. Background

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

 

At this time, Defendant moves to compel each of Orijulu’s and Iheaka’s physical examination.  Defendant also seeks an order imposing sanctions against Orijulu and Iheaka.  Defendant seeks to compel the exams per CCP § 2032.240.  The motions are unopposed. 

 

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 Orijulu’s Physical Exam

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

 

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

 

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

 

Orijulu 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 Orijulu 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 Orijulu (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 a physical exam unless the Court finds Orijulu acted with substantial justification or other circumstances make imposition of sanctions unjust.  In this case, sanctions are warranted.  In the Motion, Defendant requests .5 hours for preparing the motion and 1 hour for preparing and appearing at the hearing all at the reasonable rate of $250 per hour, for a total attorney fees award of $375.  Additionally, Defendant requests the $750 fee that had to be paid when Orijulu failed to appear for the examination.  These fees and cost are granted.  

 

Sanctions are sought and imposed against Orijulu; Orijulu is ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $1,125.00 within twenty (20) days.

 

            b. Motion to Compel Iheaka’s Physical Exam

The motion to compel Iheaka’s physical exam was originally heard on February 22, 2023, where it was continued to March 7, 2023.  Defendant was to file any supplemental brief in support of the motion by February 24, 2023.  (Notice of Ruling filed Feb. 24, 2023.)  Defendant filed a supplemental brief on that date providing:

 

Dr. Yuan has set aside March 30, 2023 at 11 am, 1 pm and 2 pm for Plaintiff Iheaka Ezieme’s IME, Duru’s IME and Orijulu’s IME. Those dates were offered to Plaintiffs’ counsel on February 14, 2023 for the three Plaintiffs. Those dates were again emailed to Plaintiffs’ counsel on February 22, 2023 as a meet and confer offering withdraw the motions and waive sanctions requested if we could come to an agreement for Plaintiffs appearance on that date. Plaintiff’s counsel has emailed me today as I was finalizing this supplemental that Iheaka Ezieme will be produced on March 30, 2023 at 1 pm with Chinyere Duru on the same day at 2 pm.

 

Additionally, Defendant submitted a copy of the notice of physical exam served on Iheaka. 

 

            The supplemental brief indicates that Iheaka is being produced on March 30, 2023, and the motion as to Iheaka should be withdrawn and sanctions are waived.  Thus, the motion as to Iheaka is taken off calendar.

 

Defendant is ordered to give notice. 

 

PLEASE TAKE NOTICE:

 

Dated this 7th day of March 2023

 

 

 

 

Hon. Audra Mori

Judge of the Superior Court