Judge: Jill Feeney, Case: 21STCV16785, Date: 2023-01-27 Tentative Ruling
Case Number: 21STCV16785 Hearing Date: January 27, 2023 Dept: 30
Department 30, Spring Street Courthouse
January 27, 2023
21STCV16785
Motion for an Order to Compel Responses and Compliance with Demand for Physical Examination
DECISION
The motion is granted.
Plaintiff is ordered to appear for the IME on February 7, 2023.
The Court declines to impose sanctions here.
However, in the future, the Court expects Plaintiff’s Counsel to respond to Defendant’s Counsel and to avoid unnecessary motions.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
This is an action for negligence arising from a vehicle collision which took place in May 2019. Plaintiff Ida Abudy filed her Complaint against Defendant Miguel Angel Salamanca Sanchez on May 4, 2021.
Defendant filed the instant motion to compel responses and compliance with demand for physical examination on October 13, 2022.
Summary
Moving Arguments
Defendant argues that Plaintiff failed to appear at the Independent Medical Examination (“IME”) set for September 6, 2022.
Opposition Arguments
Plaintiff does not oppose the motion, but argues that sanctions are not justified because Plaintiff’s poor health caused her to miss the IME.
Legal Standard
“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., § 2032.220, subd. (a).)
“The plaintiff to whom a demand for a physical examination under [Article 2] is directed shall respond to the demand by a written statement that the examinee will comply with the demand as stated, will comply … as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination.” (Code Civ. Proc., § 2032.240, subd. (a).) “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,” unless the court relieves the party from that waiver. (Code Civ. Proc., § 2032.240, subd. (a).)
“The defendant may move for an order compelling response and compliance with a demand for a physical examination.” (Code Civ. Proc., § 2032.240, subd. (b).)
A meet and confer declaration is not required before filing a motion to compel a physical examination under Article 2, Chapter 15 of the Civil Discovery Act if the responding party did not respond to the demand. (Compare Code Civ. Proc., §§ 2032.240, subd. (b), with 2032.25, subd. (a).)
“The court shall impose a monetary sanction … 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.” (Code Civ. Proc., § 2032.240, subd. (c).)
Discussion
Defendant seeks an order compelling Plaintiff to appear for her IME. Defendant’s counsel testifies that he set Plaintiff’s IME for September 6, 2022 and Plaintiff did not respond or object to the notice. (Rizzi Decl., ¶¶6-7.) After Plaintiff failed to appear for her IME, Defendant’s counsel contacted Plaintiff’s counsel informing them of her nonappearance and requesting reimbursement for the no show/late cancellation fee. (Id.) Plaintiff did not provide notice or explanation for Plaintiff’s failure to attend.
Plaintiff does not oppose Defendant’s motion to compel but argues that Plaintiff is a seventy-eight-year-old woman whose poor health prevented her from appearing for her examination. (Ruszecki Decl., ¶3.) Plaintiff had been feeling dizzy on the date of the examination and could not attend her examination. (Id., ¶2.) Plaintiff’s counsel testifies that he will drive Plaintiff to her examination in February 2023 to ensure she attends. (Id., ¶4.)
Defendant’s motion to compel IME is granted.
With respect to sanctions, sanctions are only authorized 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 a court finds that the one subject to the sanction acted with substantial justification. (Code Civ. Proc., § 2032.240, subd. (c).) Here, Plaintiff does not oppose Defendant’s motion. Accordingly, sanctions are denied.
