Judge Audra Mori, Case 20STCV44187 2023-01-25 Tentative Ruling

Plaintiff Steven Smith (“Plaintiff”) filed this action against Defendant Eric Brown (“Defendant”) for damages arising from a motor vehicle.

At this time, Defendant moves for an order compelling Plaintiff to appear for his deposition and produce documents. Additionally, Defendant moves for an order compelling Plaintiff to submit to a physical examination. The motions are unopposed.

Defendant moves to compel Plaintiff’s deposition. Defendant asserts that he originally noticed Plaintiff’s deposition for July 26, 2021. Defendant provides that the deposition was continued multiple times before the parties met and conferred and agreed to Plaintiff’s deposition going forward on July 11, 2022. On June 1, 2022, Defendant served Plaintiff with a notice of continuance of taking Plaintiff’s deposition. Plaintiff did not serve an objection to the notice, and on July 11, 2022, Plaintiff’s and defense counsel appeared; however, Plaintiff did not appear. To date, Plaintiff has not appeared for his deposition or produced the documents requested in the notice.

CCP § 2025.450(a) provides, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410.

Here, Defendant provides that following Plaintiff’s non-appearance at his July 11, 2022 deposition, Defendant met and conferred with Plaintiff’s counsel, but Plaintiff’s counsel was unable to obtain Plaintiff’s cooperation. Any opposition to the motion was due by January 11, 2023. To date, no opposition has been filed.

The motion to compel is unopposed and granted. (CCP § 2025.450(a).) Plaintiff is ordered to appear for deposition on February 27, 2023. The deposition is to be conducted via remote electronic means. Defendant must give at least ten days’ notice of the remote deposition link (notice extended per Code if by other than personal service).

As to the production of documents included in the deposition notice, (Mot. Exh. A), Defendant asserts the documents demanded are unquestionably relevant and discoverable. Defendant states that the requested photographic evidence is relevant and necessary to verify Plaintiff’s identity, and that the requested cell phone records are relevant to determining whether Plaintiff was distracted while driving. (CCP § 2025.450(b)(1) [“The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”].) Therefore, Plaintiff must produce the documents requested in the deposition notice.

CCP § 2025.450(g)(1) requires the Court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust. Defendant is awarded one hour for preparing the motion and 0.5 hours for appearing at the hearing as it relates to this matter all at the reasonable rate of $160.17 per hour, for a total attorney fees award of $240.26. Further, Defendant is awarded the $60 motion filing fee and the $235 late cancellation fee for Plaintiff’s non-appearance at the July 11, 2022 deposition as costs.

Sanctions are sought and imposed against Plaintiff. Plaintiff is ordered to pay sanctions to Defendant, by and through its attorney of record, in the total amount of $535.26, within twenty days.

(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.)

Here, Defendant asserts that because Plaintiff attributes various orthopedic injuries to the accident, Defendant served a demand for physical examination on Plaintiff on April 8, 2022, setting Plaintiff’s exam for August 31, 2022. Defendant contacted Plaintiff’s counsel on August 24, 2022, and Plaintiff’s counsel stated that the exam information had been sent to Plaintiff, but Plaintiff’s counsel had not heard back from Plaintiff. Plaintiff did not appear for the examination. Defendant asserts he attempted to meet and confer with Plaintiff, but Plaintiff has not provided available dates for his physical exam and has not appeared for an exam to date.

The evidence shows that Defendant properly served Plaintiff with a notice for a physical exam and that Plaintiff failed to appear for the examination.

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

Plaintiff is ordered to appear for an examination with Dr. Michael P. Weinstein on February 1, 2023 at 10:30 a.m. at 360 San Miguel, Suite 701 Newport Beach, CA 92660. 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 a physical exam, (Mot. Exh. B), and that the scope of the examination may not be expanded in connection with the compelled examination. Defendant must give at least ten three days’ notice of the physical examination (notice extended per Code if by other than personal service).

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.

Defendant is awarded one hour for preparing the motion and 0.5 hours for appearing at the hearing as it relates to this matter all at the reasonable rate of $160.17 per hour, for a total attorney fees award of $240.26. Defendant is further awarded the $60 motion filing fee as costs. Sanctions are sought and imposed against Plaintiff. Plaintiff is ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $300.26, within twenty days.

Hon. Audra Mori

Judge of the Superior Court