Judge: Daniel M. Crowley, Case: 21STCV17549, Date: 2022-08-17 Tentative Ruling
Case Number: 21STCV17549 Hearing Date: August 17, 2022 Dept: 28
Defendants Noah Stephen Olson and Bret Aaron Olson’s Motion to Compel Plaintiff Jesus Antonio Bermudez’s Independent Medical Exam.
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On May 10, 2021, Plaintiffs Jesus Antonio Bermudez (“Antonio”) and Melissa Bermudez (“Melissa”) filed this action against Defendants Noah Stephen Olson (“Noah”) and Bret Aaron Olson (“Bret”) for personal injury.
On September 28, 2021, Defendants filed an answer.
On July 21, 2022, Defendants filed a Motion to Compel IME of Jesus to be heard on August 17, 2022.
Trial is currently scheduled for March 15, 2023.
PARTY’S REQUESTS
Defendants request the Court compel Jesus to appear for an IME with Steven Nagelberg, M.D., on October 27, 2022, at 8:00 a.m. at Cambridge Medical Group, 10800 Paramount Blvd. Suite 204A, Downey, CA 90241. Defendants also request the Court impose $995.46 in sanctions on Plaintiffs to be paid within 20 days.
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.
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
Plaintiffs allege that Jesus suffered orthopedic injuries to his neck and back as a result of the subject accident. On February 28, 2022, Defendants served an IME demand on Jesus for an appointment with an orthopedic surgeon on May 10, 2022. Plaintiffs did not object or otherwise respond to the demand. Jesus did not appear for the exam on the noticed day. Defendants have attempted to meet and confer with Plaintiffs to set up a new date but have not received a response. Given that Defendants are entitled to take a physical examination of relevant injuries, the Court grants the motion.
Defendants request sanctions totaling $995.46 based upon 2.75 hours of attorney’s work at a rate of $160.17 per hour, 1 $60.00 filling fee and one $495.00 non-appearance fee. Attorney’s work is based one 1 hour preparing the motion, .75 hours replying to the motion, and 1 hour appearing at the hearing on the motion. As Plaintiffs did not oppose the motion, the Court will not award sanctions based on time to reply. The Court awards sanctions totaling $875.34.
CONCLUSION
Defendants Noah Stephen Olson and Bret Aaron Olson’s Motion to Compel Plaintiff Jesus Antonio Bermudez’s Independent Medical Exam is GRANTED. Jesus is ordered to appear IME with Steven Nagelberg, M.D., on October 27, 2022, at 8:00 a.m. at Cambridge Medical Group, 10800 Paramount Blvd. Suite 204A, Downey, CA 90241.
Defendants Noah Stephen Olson and Bret Aaron Olson’s Request for Sanctions is GRANTED. The Court imposes $875.34 in sanctions on Jesus and Jesus’s counsel to be paid to Defendants 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.