Judge: Cherol J. Nellon, Case: 20STCV14011, Date: 2023-04-03 Tentative Ruling

Case Number: 20STCV14011    Hearing Date: April 3, 2023    Dept: 28

BACKGROUND

On April 10, 2020, Plaintiff Bagdad Mustafayev (“Plaintiff”) filed this action against Defendant Noel Rojas (“Defendant”) for motor vehicle negligence.

On May 27, 2020, Defendant filed an answer.

On December 14, 2022, Defendant filed a Motion to Compel Plaintiff’s IME to be heard on April 3, 2023.

Trial is currently scheduled for September 7, 2023.

PARTY’S REQUESTS

Defendant requests the Court order Plaintiff to attend an IME with orthopedic surgeon Mark J. Spoonamoore, M.D., at 1450 San Pablo Street, Suite 5400, Los Angeles, California 90033, within 20 days of the hearing on the motion. Defendant also requests $3,210.00 in sanctions.

LEGAL STANDARD

A defendant may demand one physical examination of the plaintiff in applicable personal injury cases, so long as the examination is not painful, protracted or intrusive and within 75 miles of the examinee’s place of residence. Code of Civil Procedure § 2032.220. Within 20 days of being served with the demand, the plaintiff served will respond either with intent to comply or refuse, and if the latter, provide reasons for the refusal. CCP § 2032.230. 

California Code of Civil Procedure § 2023.030(a) provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” According to CCP §2023.010(d), misuse of the discovery process includes “failing to respond or to submit to an authorized method of discovery.”

DISCUSSION

Plaintiff alleges that as a result of the subject incident, Plaintiff sustained physical injuries. Defendant originally noticed Plaintiff’s IME for January 5, 2022. Due to Plaintiff’s scheduling issues, Defendant rescheduled Plaintiff’s IME 3 times. The most recent IME was noticed for November 28, 2022; Plaintiff did not appear for the noticed IME. Plaintiff has not proposed alternative dates for examination as of the time of filing this motion.

Defendant has routinely agreed to pay for Plaintiff’s travel and lodging from New York to appear in Los Angeles for the IME, and thus the 75 miles limitation is not a barrier to Defendant’s request. Defendant has, in good faith, attempted to take Plaintiff’s IME for over a year. Defendant is entitled to one related physical IME, as a matter of law; the Court grants the motion.

Defendant is entitled to sanctions as Plaintiff failed to appear for a properly notice IME, despite serving no objections nor requesting new dates. CCP § 2032.410. Defendant requests $3,210.00, based on 9 hours of attorney’s work at a rate of $350.00 per hour and 1 $60.00 filling fee. 6 hours were spent “in pursuit of this matter,” 2 hours are anticipated in reviewing opposition and 1 hour is anticipated in attending the hearing. This motion is unopposed. The Court grants sanctions totaling $1,110.00, based on 3 hours of attorney’s work.

CONCLUSION

Defendant Noel Rojas’s Motion to Compel Plaintiff Bagdad Mustafayev’s Independent Medical Exam is GRANTED. Plaintiff is ordered to appear for an IME with Mark J. Spoonamoore, M.D., at 1450 San Pablo Street, Suite 5400, Los Angeles, California 90033, within 20 days of the hearing on the motion.

Defendant Noel Rojas’s Request for Sanctions is GRANTED. Plaintiff is ordered to pay Defendant $1,110.00 in sanctions within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.