Judge: Serena R. Murillo, Case: 20STCV40833, Date: 2023-01-13 Tentative Ruling
Case Number: 20STCV40833 Hearing Date: January 13, 2023 Dept: 29
TENTATIVE
Defendant Alexander Shaeen
Daryabary’s Motion to Compel Plaintiff’s Independent Medical Examination is
GRANTED. Plaintiff
John Gotthardt is ordered to appear for physical examination with Keith
E. Liberman, M.D., within 30 days of this order.
Defendant’s
request for sanctions is GRANTED. Plaintiff and his counsel of record, Jackie Rose Kruger, are ordered to pay monetary sanctions to Defendant in the
amount of $960, 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 demand shall identify the
time, place, manner, conditions, scope, and nature of the examination, as well
as the identity and the specialty, if any, of the physician who will perform
the examination. (Code Civ. Proc., § 2032.220, subd. (c).) 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).)
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
On August 19, 2022, Defendant served an
amended Demand for Physical Examination on Plaintiff, with said examination to
be conducted on September 30, 2022. (Mahlstedt Decl., ¶ 6; Exh. A.) However, Plaintiff
failed to appear for his physical exam. As a result of the failure of Plaintiff
to appear, Defendant incurred additional expenses of $550.00 for Plaintiff’s
"no show" at the medical office. (Id., ¶ 8.)
Plaintiff has filed no
opposition to this motion, and thus has not disputed that Plaintiff has failed
to appear for his IME. Defendant is entitled to demand a physical
examination in this action. Accordingly, the motion to compel Plaintiff’s IME
is granted and Plaintiff is ordered to appear for physical examination with Keith
E. Liberman, M.D., within 30 days of this order.
As to sanctions,
Plaintiff has not filed an opposition and thus, has not provided any grounds
for the court to find he acted with substantial justification in failing to
appear for his examination. Thus, the Court finds sanctions against Plaintiff
and her counsel of record are warranted in the amount of $960 ($175 x 2 hour, $550 no show fee, plus $60
in filing fees) in favor of Defendant and against Plaintiff and his counsel of
record, Jackie Rose Kruger, jointly and severally, to be paid within 30 days of
this order.
Conclusion
Accordingly, Defendant’s motion
is GRANTED. Plaintiff
John Gotthardt is ordered to appear for physical examination with Keith
E. Liberman, M.D., within 30 days of this order.
Defendant’s
request for sanctions is GRANTED. Plaintiff and his counsel of record, Jackie Rose Kruger, are ordered to pay monetary sanctions to Defendant in the
amount of $960, jointly and severally, within 30 days of this order.
Moving party is ordered to give notice.