Judge: Audra Mori, Case: 20STCV21878, Date: 2022-09-13 Tentative Ruling

Case Number: 20STCV21878    Hearing Date: September 13, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Edward Berg (“Plaintiff”) filed this action against Defendant Avis Rent A Car Systems, LLC (“Defendant”), erroneously named and served herein as Avis Budget Group, Inc. for damages arising out of a motor vehicle accident.

Defendant asserts that after meeting and conferring with Plaintiff, Defendant previously noticed Plaintiff’s physical medical examination for November 3, 2021, but Plaintiff failed to appear for the exam without any warning.  Defendant states it then re-noticed Plaintiff’s physical examination for March 2, 2022, but Plaintiff again failed to appear for the exam. 

At this time, Defendant moves to compel Plaintiff’s physical examination and for an order imposing sanctions.  The motion is unopposed.

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 Defendant properly served Plaintiff with two notices for a physical exam, and that Plaintiff failed to appear for either examination. 

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

Plaintiff is ordered to appear for an examination with Dr. Gregory T. Heinen located at 289 West Huntington Drive, Suite 304, Arcadia, California 91007, on September 30, 2022, at 1:00 p.m.  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 notice of IME, and that the scope of the examination may not be expanded in connection with the compelled IME.  (Mot. Exh. C.) 

3. Sanctions

            Defendant also seeks 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, no explanation is given for Plaintiff’s failure to appear for the two prior exams noticed by Defendant.  Defendant is awarded two hours for preparing the motion and one hour for appearing at the hearing all at the requested rate of $140.00 per hour, for a total attorney fees award of $420.  Further, Defendant is awarded the $60 motion filing fees and $3,200 for the no-show fees for the previous exams as costs.   

Sanctions are sought and imposed against Plaintiff and Plaintiff’s attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $3,680.00, within twenty days.

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 13^th day of September 2022