SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff Nina Lubarda Stropnik (“Plaintiff”) filed this action against Defendant KP Residential LP (“Defendant”) for damages arising out of fall when Plaintiff’s foot fell into a hole.   

Defendant noticed a physical examination of Plaintiff five times, setting the examinations for October 19, 2021, January 31, 2022, March 29, 2022, August 16, 2022, and most recently January 6, 2023.  Plaintiff did not appear for any of the examinations.    

At this time, Defendant moves to compel Plaintiff’s physical examination.  Defendant also seeks an order imposing sanctions.  Plaintiff opposes the motion and also seeks sanctions. Defendant filed a reply.    

 

2. Motion to Compel Physical Examination  

CCP § 2032.220 states: 

(a) 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. 

CCP § 2032.250 provides that, when a plaintiff fails to respond to a demand, or refuses to submit to the physical examination, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam.   

Here, the evidence shows that Defendant served Plaintiff with a demand for a physical exam, set for October 19, 2021, January 31, 2022, March 29, 2022, August 16, 2022, and January 6, 2023. The noticed October 19, 2021, January 31, 2022, March 29, 2022, and August 16, 2022 exams were to be with orthopedic surgeon Jeffery Dermksian, M.D. The most recently noticed exam for January 6, 2023 is with pain management specialist Gary J. Florio, M.D. Defendant contends that Plaintiff has provided no reason for continually cancelling the examination of Plaintiff, and that Defendant incurred fees for the missed appointments.  

In opposition, Plaintiff contends that Defendant has not provided any support for incurring fees. Furthermore, Plaintiff contends that Plaintiff had Covid for one of the scheduled examinations, and that Plaintiff was in New York. Plaintiff also avers that it was winter school break during the January 6, 2023 scheduled exam, and that Plaintiff was on a pre-paid family vacation at the time. Plaintiff’s counsel avers that they had mis-calendared Plaintiff’s availability. Plaintiff’s counsel declares that Plaintiff was available for a March Independent Medical Examination (“IME”), but that Defendant refused to schedule a March IME and instead brought this instant motion to compel without further rescheduling efforts.  

In reply, Defendant argues that Plaintiff has not provided any justification or explanation for not appearing for her examination over the course of 15 months, and that Defendant is not obligated to interrogate Plaintiff’s counsel the reason for each and every cancellation. Defendant argues that Plaintiff’s counsel made no effort to reschedule the examinations.  

Plaintiff’s counsel avers that they provided advanced noticed of the cancellations. However, the Court notes that Plaintiff’s counsel emailed defense counsel on January 5, 2023, just one day prior to the January 6, 2023 IME, that Plaintiff needed to reschedule. (Mot. Exh. B.) Cancelling an IME one-day before the examination is not advanced notice. Additionally, although Plaintiff having Covid in or around the August 16, 2022 scheduled examination is sufficient reason to cancel that exam, Plaintiff does not provide any compelling reason as to why she could not appear for either the October 19, 2021, January 31, 2022, or March 29, 2022 noticed examinations. Plaintiff contends that those IMEs were in the middle of the pandemic. However, the Covid-10 pandemic had already been declared since March 2020; there are measures such as hand sanitizers, social distancing, and face masks to reduce the risk of Covid. Just because there was an on-going pandemic for nearly two years, which is the timeframe from when the pandemic was officially recognized to the date of the initial IME notice, is not a sufficient reason for Plaintiff to unilaterally cancel the properly noticed IMEs. Plaintiff’s counsel does not elaborate on what restrictions were in place in New York from October 2021 to March 2022 that would have prevented Plaintiff from appearing at her IME, to be conducted in New York. Plaintiff’s counsel also contends that they attempted to meet and confer after cancelling the January 6, 2023 examination by offering a March 2023 examination; however, there is no evidence that Plaintiff’s counsel attempted to coordinate with defense counsel throughout all the prior cancelled examinations that is “convenient for her schedule.” Defendant is entitled to a physical examination of Plaintiff. (CCP § 2032.220.) 

Therefore, Defendant’s motion to compel Plaintiff’s physical examination is granted.  However, Defendant’s moving papers do not identify which physician they seek Plaintiff to undergo a physical examination with, and the IME notices attached to the moving papers identifies two separate physicians with different addresses. Defendant must clarify at the hearing as to which medical provider Defendant is seeking Plaintiff to undergo a physical examination with: (1) orthopedic surgeon Jeffery Dermksian, M.D. or (2) pain management specialist Gary J. Florio, M.D.  

 

Plaintiff is ordered to appear for examination with__________________, at ________________________.  Plaintiff does not object to the proposed scope of the examination, as well as the manner, conditions, and nature of the examination, in the prior notice of IME. (Mot. Exh. A.)  Therefore, the scope of the examination may not be expanded in connection with the compelled IME.  Counsel must meet and confer to determine the date and time for the examination; if Plaintiff does not meaningfully participate in the meet and confer process, Defendant may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff (extended per Code if by other than personal service).   

 

3. Sanctions 

CCP § 2032.250(b) requires the Court to impose sanctions in connection with a motion to compel physical exam unless the Court finds Plaintiff acted with substantial justification or other circumstances make imposition of sanctions unjust.  There is no justification for Plaintiff’s request for sanctions, and it is therefore denied. 

As to Defendant’s request for sanctions, here, sanctions are warranted given Plaintiff’s cancellation of multiple noticed IMEs without proper justification and failure to previously provide available dates for the exam to go forward.  Defendant is awarded one hour for this motion and one hour to appear at the hearing at the requested rate of $200 per hour, for a total attorney’s fees award of $400. Further, Defendant is awarded the $60 motion filing fee as costs.    

Sanctions are sought and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally.  Plaintiff and/or Plaintiff’s counsel are ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $460, within twenty days.