Judge: Kerry Bensinger, Case: 20STCV22463, Date: 2023-05-04 Tentative Ruling

Case Number: 20STCV22463    Hearing Date: May 4, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

This action arises from a motor vehicle collision that occurred on October 1, 2019. Plaintiffs Troy Perry, Alex Omar Munguia Romero (“Romero”), and Adrineh Hayrabidian brought separate actions against Defendants Brian Boudreaux and Lois Sophia Rocha (“Defendants”). These actions have been consolidated. Defendants now move to compel Plaintiff Romero to attend an independent medical examination. No opposition has been filed.

The Court notes that Plaintiff Romero’s counsel was relieved on March 1, 2023.

II.          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 where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee.  (Code Civ. Proc., § 2032.220, subd. (a).)  A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code Civ. Proc., § 2032.220, subd. (d)).

          Within 20 days after service of the demand, the plaintiff to whom the demand is directed shall serve a written statement that he or she will comply with the demand as stated, will comply with the demand 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., § 2032.230, subd. (a).)

          If a plaintiff fails to serve a response, defendant may move for an order compelling response and compliance with the demand for a physical examination. (Code Civ. Proc., § 2023.240, subd. (b).) If a defendant who has demanded a physical examination, 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.  (Code Civ. Proc., § 2032.250, 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).)

III.        ANALYSIS

On July 7, 2022, Defendants served upon Plaintiff Romero a Demand for Independent Medical Examination set for August 15, 2022. (Curtis Decl., ¶ 4, Ex. C.) In response to certain objections, Defendants served an Amended Demand. (Curtis Decl., ¶ 5, Ex. D.) On July 12, 2022, Plaintiff Romero’s counsel served an Objection and Response to the Demand but did not object to the date of the examination. (Curtis Decl., ¶ 6, Ex. E.) On Friday, August 12, 2022, Plaintiff’s counsel stated that Plaintiff would not be attending the medical examination. (Curtis Decl., ¶ 8, Ex. G.)

The parties then agreed upon August 25, 2022 for the examination. (Curtis Decl., ¶¶ 9-10, Ex. H, I.) However, on August 24, 2022, Plaintiff’s counsel cancelled the examination. (Curtis Decl., ¶ 11, Ex. J.)

The parties then agreed upon November 17, 2022 for the examination. (Curtis Decl., ¶¶ 15-16, Ex. M, N.) However, on November 16, 2022, Plaintiff’s counsel again cancelled the examination. (Curtis Decl., ¶ 17, Ex. O.)

Defense counsel states that she reached out in December for available dates, but Plaintiff’s counsel never responded. (Curtis Decl., ¶ 19, Ex. P.) To date, Plaintiff has not provided dates regarding his availability. (Curtis Decl., ¶ 20.)

          Defendants move for an order that Plaintiff Romero appear at an independent medical examination with orthopedic surgeon Ronald Kvitne, M.D. on May 15, 2023 at 3:30 p.m. at 2401 Huntington Drive, San Marino, CA 91108. The examination will include the taking of a medical history addressing the facts relating to the accident, non-invasive testing to determine the nature and extent of injuries sustained by Plaintiff, his recovery, and his current medical condition. (See Curtis Decl., Ex. N.)  

          Plaintiff Romero alleges injuries to his neck, back, and left shoulder. (Curtis Decl., Ex. A [Plaintiff’s FROGS Nos. 6.2, 6.3], Ex. B [Plaintiff’s Depo. 47:9-49:24].)

As Defendants have a statutory right to compel the physical examination of Plaintiff, as he has put his bodily injuries at issue in this action, the unopposed motion to compel Plaintiff’s attendance at his physical examination is GRANTED. Plaintiff is ordered to appear for medical examination by Dr. Kvitne, on May 15, 2023 at 3:30 p.m. at 2401 Huntington Drive, San Marino, CA 91108.

Defendants also request sanctions under Code of Civil Procedure section 2032.250(b). Defendants request $4,500 in late cancellation fees, $1,833.00 for time spent preparing this motion, and $60 in filing fees. (Curtis Decl., ¶¶ 23-25, Ex. S.)

The Court grants this request in a reduced amount of $5,265 ($4,500 for the cancellation fees, 3 hours at $235 per hour for the filing of this motion, and the $60 filing fee.)

IV.         CONCLUSION

Defendants’ motion to compel Plaintiff Alex Omar Munguia Romero’s attendance at his physical examination is GRANTED. Plaintiff is ordered to appear for medical examination by Dr. Ronald Kvitne, on May 15, 2023 at 3:30 p.m. at 2401 Huntington Drive, San Marino, CA 91108.

Defendants’ request for sanctions is GRANTED. Sanctions are imposed against Plaintiff in the amount of $5,265.00 total to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

     Dated this 4^th day of May 2023