Judge: Lisa R. Jaskol, Case: 22STCV27856, Date: 2023-10-11 Tentative Ruling
Case Number: 22STCV27856 Hearing Date: October 11, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On August 26, 2022, Plaintiffs Omar Eduardo Coreas (“Omar Coreas”) and Christopher Eduardo Coreas ("Christopher Coreas"), a minor by and through his guardian ad litem Omar Coreas, filed this action against Defendants Anthony Wright and Does 1-25 for negligence.
On November 14, 2022, Plaintiffs amended the complaint to include Defendant Patricia Tillman as Doe 1.
On January 3, 2023, Defendants Anthony Wright and Patricia Tillman (“Defendants”) filed an answer.
On August 9, 2023, Defendants filed a motion to compel Omar Coreas’s compliance with a physical examination and for sanctions, to be heard on October 11, 2023. Plaintiffs have not filed an opposition.
Trial is currently scheduled for February 23, 2024.
PARTIES’ REQUESTS
Defendants request that the Court order Plaintiff Omar Eduardo Coreas to attend a physical examination with Jeffrey Korchek, M.D., at 11:30 a.m. on November 8, 2023, at 2625 W. Alameda Ave. #116, Burbank, CA 91505. Defendants also request sanctions of $1,300.68.
LEGAL STANDARD
A. Physical examination
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.)
B. Sanctions
“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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., § 2023.030, subd. (a).)
“Misuses of the discovery process include, but are not limited to, the following:
* * *
“(d) Failing to respond or to submit to an authorized method of discovery.”
(Code Civ. Proc., § 2023.010, subd. (d).)
“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)
DISCUSSION
A. The complaint
Plaintiffs allege that, on or about September 10, 2021, Defendant Anthony Wright and Doe defendants negligently and carelessly owned, operated, maintained, entrusted, and drove their automobile, causing a traffic collision with the automobile driven by Omar Coreas. As a result of the collision, Omar Coreas and Christopher Coreas suffered general damages and incurred medical expenses, property damages, and vehicle rental expenses in amounts to be proved at trial. Plaintiffs seek recovery of general damages, medical expenses, property damages, and vehicle rental expenses.
B. Defendants’ motion to compel a physical examination
In response to form interrogatories, Omar Coreas disclosed ongoing complaints of knee pain and unresolved injuries. He stated that he is receiving treatment from an orthopedist for his injuries.
On or about May 17, 2023, Defendants’ counsel served notice on Omar Coreas of a physical examination to be held with Dr. Korchek on August 1, 2023. Dr. Korchek's specialty is orthopedic surgery. Plaintiffs’ counsel did not serve any response or objection to the demand for a physical examination.
On July 20, 2023 and July 24, 2023, Defendants’ counsel’s secretary emailed Plaintiff’s counsel asking for confirmation that Omar Coreas would appear at the August 1, 2023 physical examination. Defendants’ counsel’s office did not receive a response to the emails.
On the morning of August 1, 2023, Dr. Korchek’s office informed Defendants’ counsel’s office that no one was present for Omar Coreas’s examination. Later that day, Defendants’ counsel sent a meet and confer letter to Plaintiffs’ counsel stating that Defendants would move to compel compliance with the examination.
Based on these undisputed facts, the Court finds that Omar Coreas failed to serve a timely response to Defendants’ demand for a physical examination, waiving any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).) The Court grants Defendants’ motion for an order compelling compliance with the demand. (Code Civ. Proc., § 2032.240, subd. (b).)
C. Defendants’ request for sanctions
Defendants are entitled to sanctions because Omar Coreas misused the discovery process by failing to appear at his scheduled physical examination. Defendants request sanctions of $1,300.68, based on 4 hours of attorney’s work at a rate of $160.17 per hour, a $600.00 cancelation fee and 1 $60.00 filing fee. Defendants’ counsel spent 2 hours drafting the motion and anticipated spending 1 hour to draft a reply and 1 hour to attend the hearing on the motion. The motion is unopposed.
The Court awards sanctions of $980.34 based on 2 hours of attorney’s work, 1 cancelation fee and 1 filing fee.
CONCLUSION
The Court GRANTS the motion of Defendants Patricia Tillman and Anthony Wright to compel Plaintiff Omar Eduardo Coreas to attend a physical examination. Plaintiff Omar Eduardo Coreas is ordered to appear for a physical examination with Jeffrey Korchek, M.D., at 11:30 a.m. on November 8, 2023, at 2625 W. Alameda Ave. #116, Burbank, CA 91505.
The Court GRANTS the request for sanctions of Defendants Patricia Tillman and Anthony Wright and orders Plaintiff Omar Eduardo Coreas and his counsel to pay Defendants $980.34 in sanctions within 30 days of the hearing on the motion.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.