Judge: Lisa R. Jaskol, Case: 20STCV40825, Date: 2024-03-25 Tentative Ruling
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Case Number: 20STCV40825 Hearing Date: March 25, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On October 23, 2020, Plaintiffs Amged Wilson Rizkalla (“Plaintiff”), Fouad Adbelmalak, and Isis Rizkalla filed this action against Defendants Daryl Owens (“Defendant”) and Does 1-50 for negligence.
On May 4, 2022, Defendant filed an answer.
On October 3, 2023, the Court dismissed the claims of Plaintiffs Fouad Adbelmalak and Isis Rizkalla with prejudice at Plaintiffs’ request.
On February 6, 2024, Defendant filed a motion to compel Plaintiff to appear for a physical examination and for sanctions, to be heard on March 25, 2024. Plaintiff has not filed an opposition.
Trial is currently scheduled for April 18, 2024.
PARTY’S REQUESTS
Defendant asks the Court to order Plaintiff to appear for a physical examination with orthopedic surgeon Brian Grossman, M.D., at 6815 Noble Avenue, 2nd Floor, Van Nuys, CA 91405. Defendant also asks the Court to impose sanctions on Plaintiff.
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 2032.230 provides:
“(a) The plaintiff to whom a demand for a physical examination under this article is directed shall respond to the demand by a written statement that the examinee 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.
“(b) 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. On motion of the defendant making the demand, the court may shorten the time for response. On motion of the plaintiff to whom the demand is directed, the court may extend the time for response.”
(Code Civ. Proc., § 2032.230.)
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 August 9, 2023, Defendant served a demand to have Brian Grossman, M.D., conduct Plaintiff’s physical examination on September 13, 2023 at 11:00 a.m. at 6815 Noble Avenue, 2nd Floor, Van Nuys, CA 91405. Plaintiff did not serve an objection to the demand.
On September 13, 2023, Plaintiff did not appear for the examination. As a result, Brian Grossman, M.D. sent a no-show bill for $2,495.00.
On September 25, 2023, Defendant’s counsel sent Plaintiff’s counsel an email asking why Plaintiff did not appear for the September 13, 2023 physical examination. Plaintiff’s counsel did not respond.
On November 29, 2023, Defendants served a second demand to have Brian Grossman, M.D., conduct Plaintiff’s physical examination. The examination was scheduled for December 20, 2023 at 11:00 a.m. Plaintiff did not serve an objection. On December 18, 2023, Defendant’s counsel asked Plaintiff’s counsel to confirm that Plaintiff would appear for the examination. Plaintiff’s counsel responded, “Our client has confirmed.”
Nonetheless, Plaintiff did not appear for the examination on December 20, 2023. Brian Grossman, M.D. sent a no-show bill for $2,495.00.
The Court grants Defendant’s motion under Code of Civil Procedure section 2032.240, subdivision (b).
Defendant requests $5,801.65 in sanctions based on the no-show fees, three hours of attorney time, and one filing fee. Code of Civil Procedure section 2032.240, subdivision (c), authorizes the Court to impose sanctions 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).) Although Plaintiff’s failure to appear at two scheduled physical examinations caused Defendant to incur nearly $5,000.00 in no-show fees and required Defendant to file this motion, Plaintiff did not make or oppose a motion to compel compliance with a demand for a physical examination. Therefore, the Court lacks statutory authorization to grant Defendant’s request for monetary sanctions.
CONCLUSION
The Court GRANTS Defendant Daryl Owens’s motion to compel Plaintiff Amged Wilson Rizkalla’s appearance at a physical examination. Defendant Daryl Owens is ordered to appear for a physical examination by Brian Grossman, M.D., within 15 days of the hearing on this motion.
The Court reopens discovery for the purpose of completing Plaintiff Amged Wilson Rizkalla’s physical examination and any related motions.
The Court DENIES Defendant Daryl Owens’s request for sanctions.
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.