Judge: Lynne M. Hobbs, Case: 21STCV01210, Date: 2024-02-01 Tentative Ruling

Case Number: 21STCV01210    Hearing Date: February 1, 2024    Dept: 30

ALEXANDRO ASIGMO vs JULIO CESAR LEMUS

TENTATIVE

Defendant’s Motion to Compel Plaintiffs’ Independent Medical Examination is GRANTED. Plaintiff is ordered to appear for physical examination by Orthopedic Surgeon Dr. Jeffrey Korchek at 2625 W. Alameda Ave. #116 Burbank, CA 91505, on February 28, 2024, at 11:30 a.m.  Defendant’s request for sanctions is DENIED.  Moving party to give notice.

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.” (Code Civ. Proc., § 2032.220.) Pursuant to CCP § 2032.220(b), this demand may be made “without leave of court.” The physical examination should be scheduled for a date at least 30 days after service of the demand. (Code Civ. Proc., § 2032.220, subd. (d).)

Where a plaintiff fails to serve a timely response to a demand for a physical examination, the plaintiff waives any objection to the demand and a defendant may move for an order compelling a response. (Code Civ. Proc. § 2032.240, subd. (a)-(b).) To be timely, the Plaintiff’s response must be served within twenty days after service of the demand was made. (Code Civ. Proc., § 2032.230, subd. (b).)

If a defendant who has demanded a physical examination deems that the refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2032.250, subd. (a).)

Subdivision (b) of Section 2032.250 states: “The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel 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.”

Discussion

Defendant noticed plaintiff’s first and only physical examination to take place on October 18, 2023. (Babadjanian Decl., ¶ 6; Exh. C.) Plaintiff did not serve any formal response or objection to the notice. (Id., ¶ 7.) Prior to the examination, plaintiff’s attorneys’ office sent an email confirming that their client would appear at the examination as noticed. (Id., ¶¶ 8-11; Exh. C.) Despite this confirmation, plaintiff never showed up for the examination. (Id., ¶¶ 12-13.) Subsequent efforts to meet and confer to stipulate to the examination as if court ordered have failed to solicit a response from plaintiff. (Id., ¶¶ 14-17, Exhs. D & E.) 

Plaintiff has not filed an opposition to this motion, and thus has not disputed that Plaintiff failed to appear for the independent medical examination (IME). Defendant is entitled to demand a physical examination of Plaintiff in this action. Accordingly, the motion to compel Plaintiff’s IME is granted and Plaintiff is ordered to appear for physical examination by Orthopedic Surgeon Dr. Jeffrey Korchek at 2625 W. Alameda Ave. #116 Burbank, CA 91505, on February 28, 2024, at 11:30 a.m.

As for sanctions, because Plaintiff has not filed an opposition to this motion, Plaintiff has not unsuccessfully opposed this motion. As such, the request for sanctions is denied.

Defendant’s request for sanctions under CCP section 2023.010 for the misuse of discovery is also denied, as "sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse of discovery.” (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504.)