SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff, Hattie Phillips (“Plaintiff”) filed this action against Defendants, City of Los Angeles, County of Los Angeles, and Los Angeles County Metropolitan Transportation Authority for damages arising from a trip and fall while attempting to exit a bus. Plaintiff dismissed the City of Los Angeles and County of Los Angeles. Trial is currently set for November 30, 2023. 

At this time, Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) moves to compel Plaintiff’s physical examination and requests monetary sanctions. Any opposition to the motion was due by October 11, 2023; none was filed. 

 

CCP § 2032.240 provides that, when a plaintiff fails to respond to a demand, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. 

On May 18, 2023, Defendant served its first demand for physical examination on Plaintiff, setting the physical examination for June 21, 2023 with Arthur Kreitenberg, M.D. (“Dr. Kreitenberg”) at 555 E. Ocean Blvd., Ste. 500, Long Beach, CA 90802. On the morning of June 21, 2023, Plaintiff’s counsel emailed defense counsel, stating Plaintiff was unable to attend due to illness and requested Defendant to provide alternative dates. On July 14, 2023, defense counsel provided two alternative dates, and Plaintiff’s counsel did not respond. Defendant then unilaterally served a new demand for examination scheduled for August 23, 2023. Plaintiff did not object to the new notice, and Plaintiff failed to appear on August 23, 2023 for her physical examination. Defendant contends that Plaintiff’s counsel has not responded to subsequent meet and confer efforts regarding Plaintiff’s failure to attend her physical examination.  

In this case, the evidence shows Defendant properly served Plaintiff with a notice to appear for Plaintiff’s physical exam, and Plaintiff failed to appear. As a personal injury plaintiff, Plaintiff is required to submit to a defense medical examination pursuant to Code of Civil Procedure section 2032.220. Plaintiff did not oppose the motion or otherwise provide any valid grounds for refusing to appear.  

Accordingly, Defendant’s unopposed motion to compel the physical examination of Plaintiff is GRANTED.   

The Court orders Plaintiff to appear for a physical examination with Dr. Kreitenberg at 555 E. Ocean Blvd., Ste. 500, Long Beach, CA 90802. The Court notes that Defendant set forth the proposed scope of the examination, as well as the manner, conditions, and nature of the examination, in the prior notice for physical exam, (Mot., Exh. C), and that the scope of the examination may not be expanded in connection with the compelled exam. The parties 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).      

 

III. Sanctions 

CCP § 2032.240(c) requires the court to impose sanctions in connection with a motion to compel physical examination unless the court finds Plaintiff acted with substantial justification or other circumstances make imposition of sanctions unjust.  Plaintiff does not oppose the motion, nor does Plaintiff provide any justification for failing to appear for the properly noticed and agreed upon physical exam. Defendant requests sanctions of $4,325. 

Defendant is awarded $350 total for preparing the instant motion, and an additional $350 to appear at the hearing, for a total attorney’s fee award of $700. Further, Defendant is awarded the $650 “no show” fee incurred from Plaintiff’s failure to appear for her examination on August 23, 2023, as costs.  

Defendant seeks sanctions against Plaintiff only. Sanctions are sought and imposed against Plaintiff. Plaintiff is ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $1,350, within twenty (20) days.