Judge Jill Feeney, Case 20STCV02402 2023-04-04 Tentative Ruling

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

On January 21, 2021, Miguel Urias Higuera (“Plaintiff”) initiated the present action by filing a Complaint against Los Angeles County Metropolitan Transportation Authority (“Defendant”). Plaintiff’s Complaint arises from a fire which occurred on a passenger bus owned and operated by Defendant, which caused Plaintiff, who was a passenger on the aforementioned bus, to suffer smoke inhalation, lung injuries, and breathing problems. Plaintiff’s Complaint alleges the following causes of action against Defendant: (1) Negligence; and (2) Breach of Duty Owed By a Common Carrier as Stated in California Civil Code § 2100.

Defendant argues that Plaintiff failed to appear at an Independent Medical Examination (“IME”) set for June 1, 2022. Defendant also seeks sanctions.

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., section 2032.220, subd. (a).)

“If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff's response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., section 2032.250, subd. (a).)

“A motion for an examination under subdivision (a) 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.” (Code Civ. Proc., section 2032.310, subd. (b).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., section 2032.250.)

Code Civ. Proc., section 2032.410 provides that if a party is required to submit to a physical or mental examination under Article 2 or 3 but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or terminating sanction. In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction under Chapter 7 commencing with section 2023.010.

Monetary sanctions for the reasonable expenses incurred may be imposed for misuse of discovery process. (Code Civ. Proc., section 2023.030, subd. (a).) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., section 2023.010, subd. (d).) Reasonable expenses incurred as a result of discovery misuse includes attorney fees, filing fees, referee fees, and other costs incurred. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 790.)

Plaintiff is seeking damages for pain in his neck, shoulder, head, and legs as a result of his exposure to smoke on a bus. (Cole Decl., ¶¶3-4.) Defendant noticed Plaintiff’s IME on April 28, 2022, setting the examination for June 1, 2022. (Motion, Exh. C.) Plaintiff’s counsel agreed to produce Plaintiff for the IME as scheduled and then failed to appear. (Cole Decl., ¶7.)

Defendant is entitled to one physical examination of Plaintiff under Code Civ. Proc., section 2032.220, subd. (a). Because Plaintiff failed to appear for the June 1, 2022 IME, Defendant’s motion to compel Plaintiff to appear for his IME is granted.

Defendant also moves for sanctions. The Court may make orders that are just, including a monetary sanction. (Code Civ. Proc., section 2032.410.) The Court finds that Plaintiff has misused the discovery process by failing to appear for his IME. Defendant incurred a $1,000 no-show fee and a $425 interpreter fee as a result of Plaintiff’s failure to appear for IME. These fees are reasonable However, Defendant’s request for sanctions for 10.5 hours of attorney time is excessive. The Court awards Defendant $2,400 in sanctions for the fees incurred and three hours of attorney time.