Judge: Lynne M. Hobbs, Case: 21STCV29639, Date: 2023-08-08 Tentative Ruling

Case Number: 21STCV29639    Hearing Date: October 18, 2023    Dept: 30

SIMON WONG vs FRANCISCO AVILA, et al.

Motion to Compel IME of Plaintiff


TENTATIVE

The Motion to Compel Plaintiff to submit to a physical examination is GRANTED. Plaintiff is ordered to submit to a physical examination within 30 days. Request for Sanction is GRANTED.  Plaintiff is ordered to pay Defendant monetary sanctions in the amount of $1040.00 within 30 days.  Moving party is ordered to give notice.

Defendant Avila moves to compel Plaintiff Simon Wong to submit to a physical examination. Defendant argues that good cause exists to compel Plaintiff to submit to a physical examination. Plaintiff’s complaint states that as a result of the acts, plaintiff “has received severe injuries to Plaintiff’s body and shock and injuries to Plaintiff’s nervous system, all of which caused him severe pain and discomfort…” (Comp. ¶ 10.) Thus, because Plaintiff has placed his physical condition in controversy, Defendant has good cause to compel a physical examination.

Here, on May 3, 2023, Defendant served a second notice of an independent medical examination, set for June 5, 2023, approximately 63 miles away from Plaintiff’s residence. (Dec. Gibbs ¶ 5.) Plaintiff did not appear, claiming he did not reside in California. (Id. at ¶ 6.) However, on August 29, 2023, Plaintiff testified that he had been living in Mission Viejo for the past year and half. (Id. at ¶ 8.) On September 6, 2023, Defendant’s counsel sent a letter to Plaintiff’s counsel after he failed to appear, despite testifying he resided in California. No response was provided.

The Court finds that good cause exists to compel Plaintiff to submit to a medical examination. Previously, this Court determined that Plaintiff’s residence was in Mission Viejo, not Nevada. Thus, the objection that he did not reside in California is unavailing. A review of the Complaint demonstrates that Plaintiff has directly placed his physical condition in controversy, claiming to suffer pain and discomfort. Therefore, based on CCP § 2032.250, Plaintiff must attend a medical. Defendant attempted to meet and confer with Plaintiff to resolve the issue, specifically as to why Plaintiff failed to attend the June 2023 examination, but it was not resolved. (Dec. Gibbs, Ex. B.) Thus, Defendant is in compliance with CCP § 2032.250.

Defendant requests $2,141.25 in sanctions. The Court finds sanctions to be justified due to the misuse of the discovery process on this repeated issue. As this motion is unopposed, the Court reduces the request to four hours of attorney time at a rate of $260 per hour, for a total of $1040.00.