Judge: Cherol J. Nellon, Case: 21STCV43972, Date: 2023-05-22 Tentative Ruling

Case Number: 21STCV43972    Hearing Date: May 22, 2023    Dept: 28

Defendant Numark Transporation, Inc.’s Motion to Compel Plaintiff Hilda Pena’s Independent Medical Exam

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On December 1, 2021, Plaintiffs Hilda Pena (“Hilda”) and Shirley Lizbeth Hernandez-Pena (“Shirley”) filed this action against Defendants Numark Transporation, Inc. (“Numark”) and Andre L. Swilley (“Swilley”) for motor vehicle negligence. Plaintiffs later amended the complaint to include Defendants Traverse Resources, LLC (“TR”) and Thomas Jimenez (“Jimenez”).

On March 21, 2022, Numark filed an answer.

On April 28, 2023, Numark filed a Motion to Compel Plaintiff’s IME to be heard on May 22, 2023. On May 9, 2023, Plaintiffs filed an opposition. On May 15, 2023, Numark filed a reply.

Trial is currently scheduled for October 4, 2023.

PARTY’S REQUESTS

Numark request the Court order Plaintiff to attend an IME with orthopedist Gregory M. Yoshida, M.D., on June 20, 2023, at 10:00 a.m., at 3475 Torrance Blvd., Suite F, Torrance, CA 90503. Numark withdrew the request for sanctions.

Hilda requests the Court deny the motion, as it is moot, and impose sanctions of $2,811.65 on Numark.

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.

Code of Civil Procedure §2032.310 (a) requires a party to obtain leave of court if it wishes to obtain discovery by an additional physical exam or any mental exam. Subdivision (b) provides that a motion shall “...specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Such a motion may only be granted on good cause shown. (CCP §2032.320(a).)

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

Hilda alleges that, as a result of the subject incident, she suffered from orthopedic injuries to her cervical spine, thoracic spine, lumbar spine, neck, shoulders, right arm, legs, buttocks, calves, feet, knees and heels. Hilda treated with an orthopedist following the incident. Numark has already scheduled one IME with a pain management doctor, in response to Hilda’s injuries and treatment related to pain and pain management, meaning the Court must find good cause to allow an additional IME. Hilda has put potential injuries and symptoms at issue that an orthopedist could evaluate, meaning there is good cause for such an IME.

Hilda stated she has already agreed to attend the IME with Dr. Yoshida. She stipulated to appear on April 29, 2023.

Numark states that the motion remains relevant, as Hilda refused to appear for her first IME. The Court disagrees. First, based on the information provided, it appears that the first IME did not move forward because Numark refused to acknowledge Hilda’s right to a nurse observer being present until the day before the IME. At this point, the nurse reserved had already been cancelled by Hilda as Numark had routinely refused to allow the nurse’s presence. The failure of the first IME to occur was due to Numark’s inability to agree upon Hilda’s rights, not due to Hilda attempting to avoid an IME. Second, as Hilda has agreed to appear for this IME, the issue is moot. Numark have demanded Hilda appear for an IME. Hilda agreed to appear. There is no conflict or history regarding an IME with Dr. Yoshida that would mandate Court involvement in this matter.

Should Numark wish to compel Hilda’s IME with the pain management specialist, Numark must file a new motion focusing on that issue.

The Court imposes sanctions on Numark for misuse of the discovery process; Hilda indicated on the filing date that she would stipulate to appear for an IME with Dr. Yoshida. This was before Hilda indicated she would not appear ME with the pain specialist—meaning she stipulated to appear for an IME not mandated under CCP §2032.220. There is no reason to believe she would go back on this stipulation. Hilda never indicated any opposition to an IME with Dr. Yoshida—she simply requested additional information on the nature of the non-mandated IME. Numark refused to take the motion off calendar, despite having no issues with Hilda appearing for an IME with Dr. Yoshida previously. Hilda requests sanctions totaling $2,811.65, based on 5.5 hours of attorney’s work, at a rate of $500.00 per hour, and 1 $61.65 filling fee. 4 hours were spent drafting the opposition, and 1.5 hours are anticipated in attending the hearing. The Court awards sanctions totaling $661.65, based on 3 hours of attorney’s work at a reasonable rate of $200.00 per hour and 1 filling fee.

CONCLUSION

Defendant Numark Transporation, Inc.’s Motion to Compel Plaintiff Hilda Pena’s Independent Medical Exam is MOOT.

Plaintiff Hilda Pena’s Request for Sanctions is GRANTED. Numark and Numark’s counsel are ordered to pay Hilda $661.65 within 30 days of the hearing on the motion.

Defendants are ordered to file supplemental papers by April 28, 2023.

Plaintiff may submit a supplemental opposition to the new papers, to be filed by May 3, 2023.

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.