Judge: Michelle C. Kim, Case: 20STCV29301, Date: 2023-05-08 Tentative Ruling

Case Number: 20STCV29301    Hearing Date: May 8, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Maritza Sandoval (“Plaintiff”) filed this action against Defendant Cecilia Wai Yee Siu (“Defendant”) for damages arising out of an automobile accident.  

On March 31, 2022, Defendant propounded a Demand for Physical Examination, setting Plaintiff’s examination May 2, 2022.  Plaintiff failed to appear for the exam.  Thereafter, on May 16, 2022, Defendant attempted to meet and confer with Plaintiff to obtain available dates to reschedule the exam, but to date, Plaintiff has not provided any such dates. 

At this time, Defendant moves to compel Plaintiff’s physical examination.  Defendant also seeks an order imposing sanctions.  The motion is unopposed. 

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. 

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).)  Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) 

In this case, the evidence shows that Defendant properly served Plaintiff with a demand for a physical exam, and that Plaintiff failed to appear for an examination.  (Mot. Exh. A.) 

Therefore, Defendant’s unopposed motion to compel a physical exam of Plaintiff is granted. 

Plaintiff is ordered to appear for examination with Dr. P. Douglas Kiester at 555 E. Ocean Ave. Suite 500, Long Beach, CA 90802.  The Court notes that Defendant has set forth the proposed scope of the examination, as well as the manner, conditions, and nature of the examination, in the prior notice of physical exam, (Mot. Exh. A), and that the scope of the examination may not be expanded in connection with the compelled physical examination.  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

            Defendant also seeks 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. 

            Here, sanctions are warranted.  Defendant is awarded two hours for preparing the motion at reasonable rate of $200, for a total attorney fees award of $400.00.  Further, Defendant is awarded the $60 motion filing fee and the $600 no show fee of $600 as costs.   

Sanctions are sought and imposed against Plaintiff and Plaintiff’s attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $$1,060.00, within twenty (20) days.

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 8^th day of May 2023