Judge: Michael E. Whitaker, Case: BC715084, Date: 2022-10-13 Tentative Ruling

Case Number: BC715084    Hearing Date: October 13, 2022    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 Aekawin Vongasavarit (Defendant) moves to compel Plaintiff Eduardo Saldivar (Plaintiff) to submit to a physical examination by Philip S. Yuan, M.D. (Yuan).  Defendant requests monetary sanctions.  Plaintiff has not filed an opposition to the motion.  

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).)  If a plaintiff fails to comply with a demand for a physical examination, “the defendant may move for an order compelling response and compliance with a demand for physical examination.”  (Code Civ. Proc., § 2032.240, subd. (b).) 

Here, on January 11, 2022, Defendant served a demand for physical examination on Plaintiff and noticed the physical examination on March 14, 2022, at 1:00 p.m. with Yuan.  Plaintiff failed to appear for examination on that date.  (See Supplemental Declaration of Dan Tusa, ¶¶ 5-6.) 

On May 19, 2022, Defendant served a demand for physical examination on Plaintiff and noticed the physical examination for June 2, 2022, at 9:00 a.m. with Yuan.  Plaintiff failed to appear for examination on that date.  (See Supplemental Declaration of Dan Tusa, ¶¶ 17-18.) 

On June 30, 2022, Defendant served a demand for physical examination on Plaintiff and noticed the physical examination for August 18, 2022, at 9:00 a.m. with Yuan.  Plaintiff failed to appear for examination on that date.  (See Supplemental Declaration of Dan Tusa, ¶¶ 19-20.) 

Defendant contends that the parties conferred regarding the rescheduling of the physical examination of Plaintiff after Defendant filed the initial motion to compel.  Defendant further contends that the parties agreed to reschedule Plaintiff’s physical examination for May 19, 2022.  However, the Court finds that the parties did not reach a final agreement regarding the May 19, 2022 physical examination of Plaintiff as set forth in the Declaration of Dan Tusa, counsel for Defendant.  (See Supplemental Declaration of Dan Tusa, ¶¶ 8-16.)  Additionally, Defendant did not serve a demand for physical examination on Plaintiff regarding the contemplated May 19, 2022 physical examination. 

Defendant seeks monetary sanctions in connection with the motion.  The Court finds Plaintiff’s failure to appear for the physical examinations as noticed to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d), 2023.240, subd. (c), 2032.410.)  Thus, the Court will impose monetary sanctions against Plaintiff and Plaintiff’s counsel of record, D. Hess Panah of the Law Offices of D. Hess Panah & Associates, in the amount of $3,335, which represents three hours of attorney time to prepare the motion and attend the hearing at $175 per hour, plus motion filing fee of $60 and non-appearance fees of $2,750 for March 14, 2022, June 2, 2022, and August 18, 2022 noticed physical examinations. 

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to compel the physical examination of Plaintiff under Code of Civil Procedure section 2032.240, and orders Plaintiff to appear for examination by Yuan within 30 days of notice of the Court’s orders, unless Defendant stipulates otherwise.  The nature and scope of the examination is as set forth in the notice issued by Defendant on June 30, 2022. 

Further, the Court orders Plaintiff and Plaintiff’s counsel of record, D. Hess Panah of the Law Offices of D. Hess Panah & Associates, jointly and severally to pay monetary sanctions in the amount of $3,335 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.