Judge: Lee S. Arian, Case: 22STCV18833, Date: 2024-02-01 Tentative Ruling
Case Number: 22STCV18833 Hearing Date: February 1, 2024 Dept: 27
Shiloh Tate v. William Walsh
|
Thursday, February 1, 2024 |
[UNOPPOSED]
Motion
– Defendant’s Motion to Compel Plaintiff’s Compliance with Independent Medical
Examination and Request for Sanctions in the Amount of $2,236.00
TENTATIVE
Defendant’s Motion to Compel
Plaintiff’s Compliance with Independent Medical Examination is GRANTED.
Additionally, the Court will impose
sanctions against Plaintiff, and award them to Defendant in the amount of $2,236.65. The sum of which, must be paid within twenty (20) days of the hearing
of this Motion.
Background
This
case commenced after Shiloh Tate (Plaintiff) filed a Complaint on June 8, 2022,
alleging (1) premises liability & (2) negligence against William Walsh
(Defendant) after Plaintiff suffered injuries when a ceiling tile fell while
Plaintiff was inside Defendants home.
Defendant
now files a Motion to Compel Plaintiff’s Compliance with Independent Medical
Examination and Request for Sanctions in the Amount of $2,236.00 (Motion) after
Plaintiff refused to complete the independent medical exam. The Motion is
unopposed.
Discussion
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.” (CCP
§ 2032.220(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.” (CCP § 2032.250(a).)
Analysis
On
January 17, 2023, Defense counsel served a demand for a physical examination
upon Plaintiff, with the physical exam set for April 4, 2023 with Dr. Charles
Rosen (Dr. Rosen). (Declaration of Kelly W. Migoya, hereafter, “Migoya Decl.”,
¶ 3.) On April 4, 2023, Plaintiff appeared as scheduled, however, Plaintiff
refused to answer any of Dr. Rosen’s questions, and then became abusive and
combative towards Dr. Rosen and his staff. (Migoya Decl., ¶ 4. Also see Exh.
B.) Plaintiff was subsequently asked to leave. (Migoya Decl., ¶ 4.) A separate
IME was then noticed for June 21, 2023 with Dr. Grossman, however, Plaintiff
called Dr. Grossman’s office to inform them he would not attend the
examination. (Id.)
Although
the first physical examination was attended, it was not completed through no
fault of Defendant, Dr. Rosen, nor his staff. Plaintiff refused to attend the
second IME. It is clear that Plaintiff has completely dismissed their discovery
obligations without justification. The Motion is granted, and sanctions are
warranted.
Sanctions
Defense counsel provides the
following calculations:
·
Counsel’s
hourly rate is $225.00
·
Counsel
spent 3 hours preparing this Motion and preparing for its subsequent appearance
·
The
cancellation fee for Dr. Grossman is $1,500.00
·
The
filing fee for this Motion was $61.65
·
Defense
counsel is requesting a total of $2,236.65[1]
The
Court will impose sanctions against Plaintiff, and award them to Defendant in
the amount of $2,236.65. The sum of which, must be paid within
twenty (20) days of the hearing of this Motion.
Conclusion
Accordingly,
Defendant’s Motion to Compel Plaintiff’s Compliance with
Independent Medical Examination is GRANTED. Additionally, the Court will impose sanctions against
Plaintiff, and award them to Defendant in the amount of $2,236.65. The sum of which, must be paid within twenty (20) days of the hearing
of this Motion.
Moving party is ordered to give notice.