Judge: Lynne M. Hobbs, Case: 22STCV07227, Date: 2023-08-21 Tentative Ruling

Case Number: 22STCV07227    Hearing Date: March 29, 2024    Dept: 30

CHRISTINA GARCIA vs 99 CENTS ONLY STORES LLC

TENTATIVE

Defendant’s Motion to Compel Plaintiff’s Independent Medical Examination is DENIED. Defendant’s request for sanctions is DENIED. Plaintiff is ordered 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

On November 10, 2023, Defendant noticed Plaintiff’s independent medical examination (IME), set for January 8, 2024. (Margolin Decl., ¶ 4; Exh. A.) On December 30, 2023, Plaintiff served an Objection to Plaintiff's Demand for Defense Medical Examination, based on the IME being unilaterally set. (Id., ¶ 5; Exh. B.) Plaintiff confirmed she would not attend the examination via email. (Id., Exh. C.) On January 3, 2024, Defendant sent Plaintiff another email to Plaintiff giving Plaintiff three dates in which to choose for her defense medical examination. (Id., Exh. D.) However, after speaking with Plaintiff, she would not agree to any of the dates.

Due to the trial date approaching, Defendant picked the farthest date before the cut-off, and served its Notice of Continuance of Defense Medical Examination, on January 3, 2024, setting the IME for January 15, 2024. (Id., Exh. E.) On January 9, 2024, Plaintiff served her Objection, based the IME being scheduled with less than 30 days’ notice as required under CCP section 2023.220(d), among other things. (Id., Exh. F.) On January 15, 2024, Plaintiff failed to appear for the IME. (Id., ¶ 12.)

In opposition, Plaintiff argues that Defendant failed to meet and confer with her prior to choosing a date for her IME, and she was not available on the date unilaterally set. Then, she argues, Defendant noticed the second IME with only 12 days’ notice in violation of CCP section 2023.220(d), which requires the IME be scheduled 30 days after service of the demand.

The Court finds that the first IME was canceled due to agreement of the parties, as Defendant concedes in his declaration. (Margolin Decl., 10.) In addition, the second IME was noticed and scheduled only 12 days later. 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).) Therefore, there is no valid notice in order to compel Plaintiff’s attendance. As a result, the motion is denied.

As the motion is denied, the request for sanctions against Plaintiff is also denied.

The Court notes that Defendant has attached another notice for Plaintiff’s IME, which is set for May. However, the motion cannot be granted as to that notice because it is premature at this time. The Court notes that Plaintiff again objects that she is not available. Defendant should meet and confer with Plaintiff to obtain a date for her availability. If Plaintiff fails to respond to Defendant’s meet and confer efforts, and the IME is otherwise properly noticed, the Court is inclined to grant any further motion compelling Plaintiff’s IME. Plaintiff is strongly encouraged to cooperate with Defendant in setting up her IME in order to avoid the imposition of monetary sanctions in the event the motion is granted in the future.

Accordingly, Defendant’s Motion to Compel Plaintiff’s Independent Medical Examination is DENIED. Defendant’s request for sanctions is DENIED.