Judge Serena R. Murillo, Case 19STCV33485 2023-02-28 Tentative Ruling

Judge: Serena R. Murillo, Case: 19STCV33485, Date: 2023-02-28 Tentative Ruling

Case Number: 19STCV33485 Hearing Date: February 28, 2023 Dept: 29

TENTATIVE

Defendant Stephen Kahn’s Motion to Compel Independent Medical Examination is GRANTED. Plaintiff Alon Elias is ordered to appear for physical examination with Jennifer Sohal, MD, within 30 days of this order.

Defendant’s request for sanctions is GRANTED. Plaintiff and counsel of record, Hesam Yazdanpanah, are ordered to pay monetary sanctions to Defendant in the amount of $935, jointly and severally, within 30 days of this order.

Legal Standard

“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.” (Code Civ. Proc., § 2032.220.) Pursuant to CCP § 2032.220(b), this demand may be made “without leave of court.” The physical examination should be scheduled for a date at least 30 days after service of the demand. (Code Civ. Proc., § 2032.220, subd. (d).)

Where a plaintiff fails to serve a timely response to a demand for a physical examination, the plaintiff waives any objection to the demand and a defendant may move for an order compelling a response. (Code Civ. Proc. § 2032.240, subd. (a)-(b).) To be timely, the Plaintiff’s response must be served within twenty days after service of the demand was made. (Code Civ. Proc., § 2032.230, subd. (b).)

If a defendant who has demanded a physical examination deems that the refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2032.250, subd. (a).)

Subdivision (b) of Section 2032.250 states: “The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Discussion

Defendant served a Demand for Physical Examination on Plaintiff on March 25, 2022. The examination was scheduled for August 3, 2022, at 12:00 p.m., with Jennifer Sohal, MD. (Mahlstedt Decl., Exh. A.) On July 26, 2022, Plaintiff served an untimely Objection to Defendant’s Demand for Physical Examination. (Id., Exh. B.) Plaintiff failed to appear for the scheduled defense medical examination on August 3, 2022, and Defendant incurred a fee for the non-appearance. (Id., Exh. D.)

Plaintiff has not filed an opposition to this motion, and thus has not disputed that Plaintiff failed to appear for the independent medical examination (IME). Moreover, Plaintiff failed to object within 20 days of service of the demand, and thus, waived the objection. Defendant is entitled to demand a physical examination of Plaintiffs in this action. Accordingly, the motion to compel Plaintiff’s IME is granted. Plaintiff is ordered to appear for physical examination with Dr. Sohal within 30 days of this order.

As to sanctions, Plaintiff has not provided any grounds for the Court to find they acted with substantial justification in failing to appear for examination. Thus, the Court finds sanctions are warranted in the amount of $935 ($250 an hour, for one hour, $625 for no show fee, plus $60 in filing fees) in favor of Defendant and against Plaintiff and counsel of record, Hesam Yazdanpanah, jointly and severally, to be paid within 30 days of this order.

Conclusion

Accordingly, Defendant Stephen Kahn’s Motion to Compel Independent Medical Examination is GRANTED. Plaintiff Alon Elias is ordered to appear for physical examination with Jennifer Sohal, MD, within 30 days of this order.

Moving party is ordered to give notice.