Judge: Daniel M. Crowley, Case: 19STCV20287, Date: 2022-10-20 Tentative Ruling

Case Number: 19STCV20287    Hearing Date: October 20, 2022    Dept: 28

Defendants Jonathan Lee and Gordon Lee’s Motion to Compel Plaintiff to Appear at Independent Physical Examination

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 11, 2019, Plaintiff Tonya Graham (“Plaintiff”) filed this action against Defendants Jonathan Lee (“Jonathan”) and Gordon Lee (“Gordon”) for negligence.

On January 29, 2021, Defendants filed an answer.

On September 20, 2022, Defendants filed a Motion to Compel Plaintiff to Submit to Physical Examination to be heard on October 20, 2022.

Trial is currently scheduled for January 31, 2023.

PARTY’S REQUESTS

Defendants request the Court order Plaintiff to appear for the physical examination with Deven Khosla, M.D., on November 29, 2022, at 1:00 p.m., at 2811 Wilshire Blvd., Suite 930, Santa Monica, CA 90403. Defendants also request the Court impose sanctions totaling $925.68 on Plaintiff and Plaintiff’s counsel.

LEGAL STANDARD

Code of Civil Procedure §2032.240 provides that a Plaintiff who fails to timely object to a demand for physical examination waives any objection to the demand. Defendant may then move for an order compelling responses and compliance with a demand for physical examination. The Court will impose sanctions upon any party that unsuccessfully makes or opposes a motion to compel compliance with a demand for physical examination, unless it finds the one subject to the sanctions acted with substantial justification.

A defendant may demand one physical examination of the plaintiff in applicable personal injury cases, so long as the examination is not pain 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

Compel IME

Plaintiff alleges that, as a result of the subject incident, she suffers from upper and mid back injuries, headaches, and numbness and tingling in the fingers and hands. Defendants served Plaintiff was a demand for physical examination by Khosla, to occur on December 6, 2021. Plaintiff did not object or appear for the examination. Plaintiff’s counsel stated that Plaintiff would need to reschedule; after meeting and conferring, parties finally agreed to set the deposition for January 25, 2022. Plaintiff did not appear for the exam. Defendants are entitled to take at least one physical examination of Plaintiff and have complied with all procedure to set said examination. The Court grants the motion.

Defendants request sanctions totaling $925.68 based upon 4 hours of attorney’s work at a rate of $160.17 per hour, 1 $60.00 filling fee and 3 hours of paralegal work at a rate of $75 per hour. The Court will not grant sanctions based on paralegal time. The Court awards sanctions totaling $700.68 

CONCLUSION

Defendants Jonathan Lee and Gordon Lee’s Motion to Compel Plaintiff to Appear at Independent Physical Examination is GRANTED. The Court orders Plaintiff to appear for an IME with Deven Khosla, M.D., on November 29, 2022, at 1:00 p.m., at 2811 Wilshire Blvd., Suite 930, Santa Monica, CA 90403, or at another mutually agreed upon date within 30 days of the hearing on this motion.

Defendants’ Request for Sanctions is GRANTED. The Court orders Plaintiff and her counsel of record to pay sanctions totaling $700.68 to Defendant, within 30 days of the hearing on this 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.