Judge Jill Feeney, Case 21STCV004464 2022-09-09 Tentative Ruling

Defendant is ordered to appear for an orthopedic examination with Dr. Michael Weinstein at 10:30a.m. on November 1, 2022, at 360 San Miguel Drive, Suite 701, Newport Beach, CA 92660. The scope of the examination will consist solely of non-painful and non-invasive orthopedic and neurological tests, which Dr. Weinstein believes are necessary to fully evaluate Plaintiff’s claims. The exam will be limited to the areas of the body Plaintiff claims are injured and/or symptomatic.

This action arises from a motor vehicle accident that occurred on December 18, 2019. On February 4, 2021, Plaintiff Samuel Sahngkyun Kim filed a complaint against Defendant Michael Thomas Terwilliger and Does 1 through 50 for auto negligence. The operative complaint is the SAC filed on December 5, 2021. Plaintiff alleges physical and mental injuries in excess of $1,800,000.00.

On June 1, 2022, Defendant filed a Motion to Compel Plaintiff to Attend a Defense Orthopedic Evaluation along with a request for sanctions. On August 26, 2022, Plaintiff filed opposition papers, and on September 1, 2022, Defendant replied.

Defendant argues that Plaintiff waived any objection to an orthopedic examination by failing to respond to Defendant’s request within the 20 days required by California Code of Civil Procedure sections 2032.230(b) and 2032.240. More specifically, Defendant accuses Plaintiff of using unfair tactics to limit Defendant’s ability to obtain an expert opinion as to Plaintiff’s physical injuries. Even if Plaintiff has not waived his right to object to the orthopedic examination, Defendant argues there is still good cause for the Court to compel Plaintiff’s attendance.

Plaintiff argues that he should be relieved from waiving his objection to the exam because Plaintiff’s failure to timely respond was the result of his counsel’s inadvertence and/or excusable neglect. Plaintiff does not appear to argue whether good cause for the orthopedic examination exists. Rather, Plaintiff argues that Defendant’s request is defective because it does not specify, using precise medical names, the examinations that are to be conducted.

Defendant responds by arguing that Plaintiff has failed to show inadvertence or excusable neglect on the part of Plaintiff’s Counsel. Defendant also notes Plaintiff’s failure to address Defendant’s arguments that good cause exists for the orthopedic examination.

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff…” (Code Civ. Proc. §2032.220(a).) “A demand 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 physician who will perform the examination.” (Code Civ. Proc. §2032.220(c).)

“Within 20 days after service of the demand the plaintiff to whom the demand is directed shall serve the original of the response to it on the defendant making the demand, and a copy of the response on all other parties who have appeared in the action.” (Code Civ. Proc. §2032.230(b).) A defendant can move for an order compelling a response and compliance with a demand for a physical examination. (Ibid.)

“If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand. The court, on motion, may relieve that plaintiff from this waiver on its determination that both of the following conditions are satisfied: (1) The plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230; (2) The plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc. §2032.240(a).)

“If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.” (Code Civ. Proc. §2032.310(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. §2032.310(b).)

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown… An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc. §2032.320.) “[A] showing of ‘good cause’ [requires] that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)

California Code of Civil Procedure section 2032.240, subdivision (c) states: “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 response and 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.”

Furthermore, “[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...If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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. § 2023.030.)

California Code of Civil procedure section 2032.250, subdivision (a) states: “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.”

Here, Defendant satisfied the requirements to meet and confer before filing the instant motion. Defendant provides a declaration from counsel stating that attempts were made to meet and confer with Plaintiff’s Counsel on May 18, 2022, and May 31, 2022. (Grandy Decl. ¶¶ 14,15.) Defendant also provides copies of emails from the same dates demonstrating that meet and confer attempts were made. (Id., Exhibit G.)

As a threshold matter, Defendant argues that Plaintiff waived all objections to Defendant’s request for a medical examination (“DME”) by failing to respond to Defendant’s request in a timely manner.

Defendant propounded his request for an orthopedic examination—to be performed by Dr. Michael Weinstein—on Plaintiff on January 24, 2022. (6/1/22 Grandy Decl., Exhibit D.) Defendant also propounded a request for a neurological examination on April 1, 2022. (Id., Exhibit E.) On May 18, 2022, Plaintiff objected to the orthopedic examination. (Id., Exhibit F.) Plaintiff does not dispute that he failed to object within the 20 days allowed by California Code of Civil Procedure section 2032.230(b), and that he waived his right to object pursuant to California Code of Civil Procedure section 2032.230(a).

Rather, Plaintiff argues that the Court should relieve him from waiver because he did in fact object to the orthopedic examination prior to the instant motion being filed, and his failure to timely object was due to Plaintiff Counsel’s inadvertence or excusable neglect. Specifically, Plaintiff’s Counsel submits a declaration stating that his secretary normally sends out responses to requests for DMEs. (Helo Decl. ¶ 17.) Plaintiff’s Counsel states that his secretary has been “trained and instructed” to respond to DME requests, and has done so “hundreds of times before.” (Id.) Therefore, Plaintiff’s Counsel was inattentive as to the lack of response to Defendant’s request for an orthopedic examination. (Id. ¶ 18.)

Defendant rebuts this by providing evidence that Plaintiff’s Counsel has repeatedly failed to respond to Defendant’s requests for DMEs in a timely manner. (9/1/22 Grandy Decl.; Exhibit L.) Moreover, the timing of Plaintiff’s objection to the orthopedic examination is questionable. Plaintiff objected to the orthopedic examination on May 18, 2022, while he was in the middle of the neurological examination requested by Defendant. (6/1/22 Grandy Decl.; Exhibit F.) However, Plaintiff provides no explanation for why or how Plaintiff’s Counsel was able to realize at that exact moment that his secretary had not responded to Defendant’s request for an orthopedic examination. Simply put, waiting to object to the orthopedic examination until after the neurological examination had started put Defendant at a significant disadvantage by threatening his ability to obtain an expert opinion as to Plaintiff’s physical injuries.

Considering the circumstances—and Plaintiff’s inadequate explanation—the Court finds that Plaintiff has waived his right to object to Defendant’s request for a physical examination by the orthopedic surgeon Dr. Michael Weinstein. Nonetheless, the Court will consider the merits of Defendant request.

Since Defendant propounded his request for the orthopedic examination first, he was within his rights to demand one physical examination of the Plaintiff and does not need to show good cause. (See Code Civ. Proc. §2032.220.) However, since Plaintiff has already complied with Defendant’s request for a neurological examination as of the hearing on this motion, the Court will consider whether there is good cause to grant Defendant’s Motion to Compel an orthopedic examination under section 2032.310 of the California Code of Civil Procedure.

Here, as a result of his alleged injuries, Plaintiff submits two lifetime care estimates of $1,709,064.00 and $1,017,123.80 (6/1/22 Grandy Decl., Exhibits B,C.) Plaintiff alleges he suffered a hairline fracture in his neck (Helo Decl. ¶ 5.), and claims he continues to suffer from severe neck and back pain. (6/1/22 Grandy Decl., Exhibits A.) Plaintiff has received treatment from chiropractors, acupuncturists, and his own orthopedic surgeon who performed an L4-L5 microdecompression. (Id. ¶¶ 3,4.) Defendant would be severely prejudiced if he was not allowed to perform his own physical examination of Plaintiff. Plaintiff does not appear to dispute that Defendant has shown good cause for the orthopedic examination scheduled with Dr. Weinstein.

Instead, Plaintiff argues that Defendant’s motion is defective because it does not specify, using precise medical names, the examinations that are to be conducted. In fact, Plaintiff argues this is the basis of his May 18, 2022 objection to the orthopedic examination. Plaintiff, however, misunderstands the requirements of California Code of Civil Procedure section 2032.220(c). Section 2032.220(c) requires that a demand for a physical examination specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. It does not require that the demand specify, using precise medical names, the examinations that are to be conducted. Only an order from the court, in granting a motion for a physical or mental examination under Section 2032.310 after a showing of good cause, need specify the “diagnostic tests and procedures of the examination.” (Code Civ. Proc. §2032.320.)

Here, Defendant’s January 24, 2022 demand for an orthopedic examination of Plaintiff by Dr. Weinstein specifies the time and place or the examination, as well as the identity and specialty of the doctor. (6/1/22 Grandy Decl., Exhibit D.) It indicates the scope and nature of the examination by further stating: “This examination will be conducted for the purpose of determining the nature and extent of injuries, if any, sustained as a result of the accident, which is the subject of this lawsuit. The scope of the examination will consist of non-painful and non-invasive orthopedic and neurological tests, which the examining physician feels are necessary to fully evaluate the claims as presented by plaintiff. The scope of the exam will be limited to the areas of the body plaintiff claims are/were injured and the areas of plaintiff’s body that are/were symptomatic.” (Ibid.) Defendant has met the requirements of California Code of Civil Procedure section 2032.220(c).

Defendant has properly demanded one physical examination pursuant to California Code of Civil Procedure section 2032.220. Plaintiff has waived his right to object to the examination. Defendant has also shown good cause for a second examination pursuant to California Code of Civil Procedure section 2032.320.

Defendant filed the instant motion on June 1, 2022, and Plaintiff filed opposition papers on August 26, 2022. As discussed above, the Court will grant Defendant’s motion, and therefore Plaintiff’s opposition is unsuccessful. California Code of Civil Procedure section 2032.240 is clear—the Court shall award sanctions whenever a party unsuccessfully opposes a motion to compel compliance with a demand for physical examination.

In the alternative, California Code of Civil Procedure section 2023.030 gives the Court authority to award sanctions for abuses of the discovery process. Plaintiff argues that sanctions are inappropriate because Plaintiff acted in substantial justification or other circumstances make the impositions of sanctions unjust. However, Plaintiff fails to state facts demonstrating why his late objection was substantially justified or what circumstances exist to make the imposition of sanctions unjust. The only legitimate excuse provided by Plaintiff’s Counsel is that he assumed his secretary had responded to Defendant’s DME request. (Helo Decl. ¶ 17.) This is not enough to defeat the imposition of sanctions, especially considering evidence offered by Defendant indicating that Plaintiff’s Counsel has repeatedly failed to respond to Defendant’s requests for DMEs in a timely manner. (9/1/22 Grandy Decl.; Exhibit L.)

Defendant requests $1,035.00 in sanctions. This includes 4.0 hours preparing the instant motion and .5 hours to review Plaintiff’s opposition and prepare a reply at a $230.00 hourly rate, plus $60.00 in motion fees. (6/1/22 Grandy Decl. ¶ 21.) Defendant’s Counsel has not included the time it will take her to appear at the hearing for this motion. Furthermore, Defendant’s Counsel attests that Defendant has incurred $1,500 in doctor cancellation fees due to Plaintiff’s late cancellations of appointments related to Defendant’s DME requests (9/1/22 Grandy Decl.; Exhibit M.) Consequently, $1,035.00 is an appropriate amount of sanctions.