Judge: Lisa R. Jaskol, Case: 19STCV05984, Date: 2023-08-28 Tentative Ruling

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Case Number: 19STCV05984    Hearing Date: September 6, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On February 21, 2019, Plaintiff Imtiaz Ahmed (“Plaintiff”) filed this action against Defendants Joseph Monroe (“Defendant”) and Does 1-50 for negligence. 

On September 15, 2021, the Court dismissed the action without prejudice. On May 27, 2022, the Court vacated the dismissal. 

On June 7, 2022, Defendant filed an answer. 

On June 26, 2023, Defendant filed a motion to compel Plaintiff to attend a physical examination to be heard on August 28, 2023. The Court continued the hearing on the motion to September 6, 2023. On August 25, 2023, Plaintiff filed an opposition. On August 25, 2023, Defendant filed a reply. 

Trial is currently scheduled for September 13, 2023. 

PARTIES’ REQUESTS 

Defendant requests that the Court order Plaintiff to attend a physical examination on September 5, 2023 with neurologist Peter-Brian Andersson, M.D., at 18730 Burbank Blvd., Suite 107, Tarzana, CA 91356. Defendant also requests sanctions of $3,660.00. 

Plaintiff requests that the Court deny the motion. 

LEGAL STANDARD 

Code of Civil Procedure section 2032.220 provides: 

“(a) 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. 

“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first. 

“(c) 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. 

“(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time. 

“(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.” 

(Code Civ. Proc., § 2032.220.) 

          Code of Civil Procedure section 2032.240 provides: 

“(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. 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. 

“(b) The defendant may move for an order compelling response and compliance with a demand for a physical examination. 

“(c) 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. 

“(d) If a plaintiff then fails to obey the order compelling response and compliance, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” 

(Code Civ. Proc., § 2032.240.) 

DISCUSSION 

On March 17, 2023, Defendant served Plaintiff with a notice of medical examination to take place on April 25, 2023.  Plaintiff failed to serve a timely response under Code of Civil Procedure section 2032.230. Defendant sent a follow-up email to confirm the examination date.  On April 21, 2023, Plaintiff’s counsel emailed Defendant’s counsel and stated Plaintiff could not attend on short notice. Plaintiff then served an untimely objection asserting the date was unilaterally selected. 

Plaintiff waived his right to object to the examination notice by failing to serve a timely objection.  Nonetheless, Defendant attempted to reschedule the examination. Plaintiff then objected because the new date was after the discovery deadline then in effect. 

Plaintiff’s opposition points to other alleged deficiencies in the initial examination notice, such as unclear information about the tests to be performed. However, Plaintiff waived his right to object to the notice on these grounds.  In addition, the Court finds that the examination demand complies with the requirements of Code of Civil Procedure section 2032.220. 

The Court grants the motion.  The Court continued the hearing on this motion to a date after the requested examination and after the discovery motion deadline date. The Court therefore continues the trial date to give the parties time to complete the examination prior to trial.  The Court reopens discovery solely for the purpose of allowing Defendant to conduct Plaintiff's physical examination. 

Defendant is entitled to sanctions because Plaintiff unsuccessfully opposed a motion to compel Plaintiff’s physical examination without substantial justification. (Code Civ. Proc., § 2032.240, subd. (c).) Defendant requests sanctions totaling $3,660.00, based on 14 hours of attorney’s work at a rate of $200.00 per hour, an $800.00 cancelation fee and 1 $60.00 filling fee.  Counsel spent 10 hours drafting the motion, 3 hours replying to the opposition and anticipated spending 1 hour attending the hearing on the motion. The Court awards sanctions totaling $1,660.00, based on 4 hours of attorney’s work, 1 cancelation fee and 1 filing fee. 

CONCLUSION 

The Court GRANTS Defendant Joseph Monroe’s motion to compel Plaintiff Imtiaz Ahmed’s physical examination.  Plaintiff is ordered to appear for a physical examination with neurologist Peter-Brian Andersson, M.D., at 18730 Burbank Blvd., Suite 107, Tarzana, CA 91356, within 30 days of the hearing on the motion. 

The Court continues the trial to October 13, 2023.  Discovery is reopened for Plaintiff’s physical examination but remains closed for all other issues. 

The Court GRANTS Defendant Joseph Monroe’s request for sanctions and orders Plaintiff and Plaintiff’s counsel to pay Defendant $1,660.00 in sanctions within 30 days of the hearing on the motion. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.