Judge: Michael E. Whitaker, Case: 19STCV44750, Date: 2023-01-19 Tentative Ruling

Case Number: 19STCV44750    Hearing Date: January 19, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Defendant City of Los Angeles (Defendant) moves to compel Plaintiff Erica Lopez (Plaintiff) to submit to an independent medical examination with Jeffrey Korcheck, M.D. (Korcheck).  Defendant requests monetary sanctions in connection with the motion. 

            Plaintiff has not filed an opposition.  Defendant Maler and Bayer Properties Partnership has filed a notice of joinder to Defendant’s motion to compel Plaintiff’s independent medical examination.   

ANALYSIS

            When the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may obtain a physical examination of the plaintiff.  (Code Civ. Proc., §§ 2032.020, 2032.220.)  A defendant is entitled to one physical examination of the plaintiff in a personal injury action on demand.  (Code Civ. Proc., § 2032.220, subd. (a).) 

Here, Defendant served a demand for physical examination on May 17, 2022, scheduling the physical examination on June 22, 2022.  (See Declaration of Vanessa Ticas, ¶ 3, Exhibit A.)  On June 3, 2022, Plaintiff responded to the demand and agreed to appear for the physical examination.  (Id. at ¶ 4, Exhibit B.)  But Plaintiff did not appear for the June 3, 2022 examination.  (Id. at ¶ 5.) 

In addition, on August 22, 2022, Defendant served an amended demand for physical examination, scheduling the physical examination on October 4, 2022, which was previously agreed to by Plaintiff.  (See Declaration of Vanessa Ticas, ¶¶ 6-7, Exhibits C-D.)  But a day before the physical examination, Plaintiff advised of the “cancellation” of the examination.  (Id. at ¶ 8, Exhibit F.) Therefore, Plaintiff did not appear for the October 4, 2022 examination and as of the filing date of this motion, Plaintiff has not appeared for examination. 

The Court finds Plaintiff’s failure to appear for the physical examinations to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d); 2023.040, subd. (c); 2032.410.)  Thus, the Court will impose monetary sanctions against Plaintiff and Plaintiff’s attorney of record, Harry Nalbandyan of Levin & Nalbandyan, in the amount of $950 for the non-appearance fees for the June 22, 2022 and the October 4, 2022 physical  examinations. 

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to compel the physical examination of Plaintiff and orders Plaintiff to appear for examination by Korcheck within 30 days of notice of the Court’s orders, unless Defendant stipulates otherwise.  The nature and scope of the examinations are as set forth in the notice issued by Defendant on August 22, 2022. 

Further, the Court orders Plaintiff and Plaintiff’s counsel of record, Harry Nalbandyan of Levin & Nalbandyan, jointly and severally to pay monetary sanctions in the amount of $950 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders.

Defendant shall provide notice of the Court’s orders and file a proof of service of such.