Judge: Daniel M. Crowley, Case: 21STCV33264, Date: 2023-03-16 Tentative Ruling

Case Number: 21STCV33264    Hearing Date: March 16, 2023    Dept: 28

Defendant Sabine Obagi’s Motion to Compel Plaintiff Maurice Adams’s Independent Medical Exam

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

BACKGROUND

On September 8, 2021, Plaintiff Maurice Adams (“Plaintiff”) filed this action against Defendants Sabine Obagi (“Obagi”) and James Antonucci (“Antonucci”) for negligence.

On October 15, 2021, Obagi filed an answer and a Cross-Complaint against Cross-Defendant Antonucci for complete indemnity, partial indemnity and declaratory relief. On November 12, 2021, Antonucci filed an answer.

On November 18, 2021, Antonucci filed a Cross-Complaint against Cross-Defendant Obagi for indemnity, apportionment of fault and declaratory relief. On December 9, 2021, Obagi filed an answer.

On February 27, 2023, Obagi filed a Motion to Compel Plaintiff’s IME to be heard on March 16, 2023.

Trial is currently scheduled for October 4, 2023.

PARTY’S REQUESTS

Obagi request the Court order Plaintiff to attend an IME with orthopedic surgeon Steven Nagelberg, M.D., on April 26, 2023, at 9:00 a.m., at 10800 Paramount Blvd., Downey, CA 90241. Obagi also requests sanctions totaling $1,200.00.

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

Plaintiff alleges that as a result of the subject incident, Plaintiff sustained neck and back injuries. Obagi originally noticed Plaintiff’s IME with Dr. Nagelberg for November 29, 2022; Plaintiff failed to appear for the IME. Plaintiff requested another exam be scheduled. Obagi rescheduled the IME for February 9, 2023, which Plaintiff again failed to attend. Plaintiff has put relevant injuries at issue and Obagi has attempted to take Plaintiff’s IME twice before. The Court finds good cause and grants the motion.

Obagi 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. Obagi requests $1,200.00, based on two cancellation fees from Dr. Nagelberg. The Court finds the requested sanctions reasonable and grants the request in full.

CONCLUSION

Defendant Sabine Obagi’s Motion to Compel Plaintiff Maurice Adams’s Independent Medical Exam is GRANTED. Plaintiff is ordered to appear for an IME with orthopedic surgeon Steven Nagelberg, M.D., on April 26, 2023, at 9:00 a.m., at 10800 Paramount Blvd., Downey, CA 90241.

Defendant Sabine Obagi’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Obagi $1,200.00 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.