Judge: Lisa R. Jaskol, Case: 22STCV22290, Date: 2024-08-05 Tentative Ruling
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Case Number: 22STCV22290 Hearing Date: August 5, 2024 Dept: 28
Having considered the moving and late opposition papers, the Court rules as follows.
BACKGROUND
On July 11, 2022, Plaintiff Margarita Wright (“Plaintiff”) filed this action against Defendants The Kroger Co., Ralphs Grocery Company, and Does 1-100 for negligence and premises liability.
On July 28, 2022, Defendant Ralphs Grocery Company dba Ralphs (erroneously sued as The Kroger Co. and Ralphs Grocery Company) (“Ralphs”) filed an answer.
On September 22, 2022, Defendant The Kroger Co. filed an answer.
On June 20, 2024, Ralphs filed a motion for an order compelling Plaintiff to submit to a defense medical examination, to continue the trial, and for sanctions. The motion was set for hearing on August 5, 2024. On July 31, 2024, Plaintiff filed a late opposition.
Trial is currently scheduled for November 14, 2024.
PARTIES’ REQUESTS
Ralphs asks the Court to order Plaintiff to appear for an examination by orthopedic surgeon Dr. Russell Nelson, to continue the trial, and to impose sanctions on Plaintiff and her counsel.
Plaintiff asks the Court to deny the motion.
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
A. Ralphs’s motion to compel Plaintiff's independent medical examination and to continue trial
On February 26, 2024, Ralphs served a demand for Plaintiff’s independent medical examination with Dr. Russell Nelson, a board-certified orthopedic surgeon, for March 28, 2024 in Dr. Nelson’s office in Thousand Oaks, California. The notice stated that Dr. Nelson would charge a fee if Plaintiff failed to appear or if the examination was cancelled less than 72 hours before the scheduled examination date.
Plaintiff did not serve a timely objection to the demand. On March 26, 2024, in response to Ralphs’s counsel’s inquiry, Plaintiff’s counsel informed Ralphs that Plaintiff would not attend the examination because the doctor’s office was more than 75 miles from Plaintiff’s residence. Dr. Nelson charged $1,500.00 for Plaintiff’s late cancellation of the March 28, 2024 examination.
Counsel met and conferred. In exchange for a waiver of the late cancellation fee, the parties stipulated to continue the trial to accommodate the rescheduling of Plaintiff’s independent medical examination with Dr. Nelson in his Thousand Oaks office. Plaintiff waived the 75-mile limitation of Code of Civil Procedure section 2032.220, subdivision (a)(2). (Johnson Dec. ¶ 4.)
Based on the parties’ stipulation, Ralphs served an amended demand for Plaintiff’s independent medical examination. (Johnson Dec. ¶ 5.) Ralphs scheduled the examination for May 30, 2024 in Dr. Nelson’s Thousand Oaks office. The amended demand stated that Dr. Nelson would charge a late cancellation fee if the examination was canceled less than 72 hours before the scheduled examination date.
Plaintiff did not serve a timely objection to the amended demand. On the morning of May 30, 2024, Plaintiff’s counsel informed Dr. Nelson that Plaintiff could not attend the rescheduled examination due to illness. Dr. Nelson charged $1,500.00 for Plaintiff’s late cancellation of the May 30, 2024 examination.
On May 31, 2024, and June 7, 2024, Ralphs’s counsel asked Plaintiff’s counsel to pay Dr. Nelson’s $1,500.00 late cancellation fee. On June 10, 2024, Plaintiff’s counsel refused to pay the late cancellation fee but agreed to another trial continuance to allow Dr. Nelson to examine Plaintiff.
Ralphs’s counsel provided available dates for another rescheduled independent medical examination and asked Plaintiff’s counsel to pay the late cancellation fee. Plaintiff’s counsel refused to respond, refused to confirm Plaintiff’s payment of the late cancellation fee, and refused to confirm Plaintiff’s attendance at a rescheduled examination.
Ralphs asks the Court to order Plaintiff to submit to a defense medical examination and to continue the trial.
B. Plaintiff’s late opposition
In her late opposition to Ralphs’s motion, Plaintiff argues that Ralphs’s demand for an examination under Code of Civil Procedure section 2032.220 did not comply with the statutory requirements. Ralphs’s argument is difficult to follow (see Opposition p. 3), but even assuming the argument’s validity, Ralphs waived the argument under Code of Civil Procedure section 2032.240, subdivision (a), by failing to serve a timely objection to the demand.
Plaintiff also argues (1) Ralphs has not served a valid notice for an independent medical examination on Plaintiff (Opposition pp. 1-2, 4-5) and (2) the location of Plaintiff’s scheduled independent medical examination was more than 75 miles from Plaintiff’s residence in violation of Code of Civil Procedure section 2032.220, subdivision (a)(2). Plaintiff does not address Ralphs’s evidence that Ralphs served valid demands for independent medical examinations and that Plaintiff waived the 75-mile limit.
Plaintiff also contends that Ralphs has not shown “good cause” for an examination under Code of Civil Procedure sections 2032.310 and 2032.320. (Opposition p. 4.) Plaintiff fails to show that these statutes apply here.
In addition, Plaintiff argues that she “has no present complaint of personal injuries.” (Opposition p. 5.) Plaintiff’s complaint, however, alleges that Plaintiff “sustained injuries to her body” including “extensive damages, . . . pain and suffering, and physical disability . . . .” (Complaint ¶ 12.) Ralphs is entitled to explore these allegations in discovery.
C. Ruling on motion to compel
Plaintiff failed to serve objections to two demands for independent medical examinations and has refused to pay the late cancellation fee for failing to attend the second examination without giving the required notice. In addition, Plaintiff has failed to meet and confer to reschedule the examination.
The Court grants the motion in part. The Court orders Plaintiff to attend an independent medical examination with Dr. Nelson within 30 days. The request to continue the trial is moot because the Court granted Ralphs’s ex parte application to continue the trial.
D. Sanctions
Ralphs asks the Court to impose $2,810.00 in sanctions based on Dr. Nelson’s $1,500.00 late cancellation fee, five hours of attorney time at a rate of $250.00 per hour, and one $60.00 filing fee. Counsel spent three hours to prepare the motion and anticipated spending two hours to prepare a reply and prepare for and attend the hearing.
The
Court grants $2,310.00 in sanctions based on three hours of attorney time, one
filing fee, and the $1,500.00 late cancellation fee.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendant Ralphs Grocery Company dba Ralphs’s motion for an order compelling Plaintiff Margarita Wright to submit to a defense medical examination, to continue the trial, and for sanctions.
The Court ORDERS Plaintiff Margarita Wright to attend an independent medical examination with Dr. Russell Nelson in Dr. Nelson’s office in Thousand Oaks, California by September 5, 2024.
The Court DENIES as moot Defendant Ralphs Grocery Company dba Ralphs’s request to continue the trial.
The Court GRANTS Defendant Ralphs Grocery Company dba Ralphs’s request for sanctions and orders Plaintiff Margarita Wright and her counsel to pay Defendant Ralphs Grocery Company dba Ralphs $2,310.00 by September 5, 2024.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling within five days.