Judge: Daniel M. Crowley, Case: 19STCV38789, Date: 2023-02-14 Tentative Ruling

Case Number: 19STCV38789    Hearing Date: February 14, 2023    Dept: 28

Defendant Mia Corvino’s Motion for Leave to Conduct Mental Exam

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

BACKGROUND

On October 30, 2019, Plaintiff Emily McGahee (“Plaintiff”) filed this action against Defendant Mia Corvino (“Defendant”) for negligence.

On June 23, 2021, Defendant filed an answer.

On December 27, 2022, Defendant filed a Motion for Leave to Conduct Plaintiff’s IME to be heard on February 14, 2023.

Trial is currently set for September 11, 2023.

PARTY’S REQUESTS

Defendant requests the Court compel Plaintiff to appears for an independent mental exam with orthopedic surgeon, Stephen Nagelberg, M.D., at 10800 Paramount Blvd., Suite 204-A, Downey, California 90241, on February 28, 2023, at 10:00 a.m. Defendant also requests the Court grant sanctions totaling $1,375.68.

LEGAL STANDARD

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. 

DISCUSSION

Plaintiff alleges that, as a result of the subject incident, she has suffered from neck, back and left knee injuries. Plaintiff has put potential injuries and symptoms at issue that an orthopedic surgeon could evaluate, meaning there is good cause for such an IME. Plaintiff has not attended any other IME.

Defendant has been attempting to take Plaintiff’s IME since March 28, 2022; Plaintiff failed to appear for her November IME. Defendant is entitled to take Plaintiff’s IME. Defendant has provided the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty of the person to perform the examination. The Court grants the motion.

Defendant is entitled to sanctions under CCP § 2023.010 for misuse of the discovery process in failing to submit to an authorized method of discovery and under CCP § 2032.250 for failing to appear for a properly noticed physical examination. Defendant requests sanctions totaling $1,375.68, based on 4 hours of attorney’s work at a rate of $160.17 per hour, 1 hour of paralegal time at a rate of $75.00 per hour, one $600.00 no-show fee and one $60.00 filling fee. The Court will not award sanctions based on paralegal time. The Court awards sanctions totaling $1,315.68.

CONCLUSION

Defendant Mia Corvino’s Motion for Leave to Conduct Mental Exam is GRANTED. Plaintiff is ordered to appear for an independent mental exam with orthopedic surgeon, Stephen Nagelberg, M.D., at 10800 Paramount Blvd., Suite 204-A, Downey, California 90241, on February 28, 2023, at 10:00 a.m.

Defendant Mia Corvino’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Defendant $1,315.68 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.