Judge Serena R. Murillo, Case 20STCV42086 2023-02-27 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV42086, Date: 2023-02-27 Tentative Ruling

Case Number: 20STCV42086 Hearing Date: February 27, 2023 Dept: 29

TENTATIVE

Defendant Carl Schroeter’s Motion to Compel Plaintiffs’ Independent Medical Examination is GRANTED. Plaintiffs Bradley Arrowood and Elizabeth Lovie Jones are ordered to appear for physical examination with Philip S. Yuan, M.D., on March 13, 2023, or on a mutually convenient date within 30 days of this order.

Defendant’s request for sanctions is GRANTED. Plaintiffs Bradley Arrowood and Elizabeth Lovie Jones and counsel of record, Vania Nemanpour, are ordered to pay monetary sanctions to Defendant in the amount of $2,319.95, 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

On February 9, 2022, defense counsel sent a demand for physical examination on Plaintiffs, set to be conducted on May 12, 2022. (Rizzi Decl., Exh. A.) On May 9, 2022, (three days before the scheduled examinations were to take place), Plaintiffs emailed Defendant objections to the demand for physical examination. As a result of Plaintiffs’ failure to provide sufficient notice, Defendant incurred late cancellation fees from Dr. Yuan’s office. (Id., Exh. B.) On May 13, 2022, Defendant reset Plaintiffs’ physical examination for July 18, 2022. (Id., Exh. C.) On July 18, 2022, Plaintiffs failed to appear for the properly noticed demand for physical examination. As a result of Plaintiffs’ actions, Defendant has incurred additional “no show fees.” (Id., Exh. D.) Defense counsel e-mailed Plaintiffs’ counsel of record a meet a confer letter and requested confirmation that Plaintiffs would appear for the re-noticed demand for physical examination and pay the incurred fees. (Id., Exh. E.) However, Defendant has never received a response from Plaintiffs’ counsel of record, necessitating the motion.

Plaintiffs have not filed an opposition to this motion, and thus have not disputed that Plaintiffs have failed to appear for their independent medical examination (IME). Moreover, Plaintiffs failed to object within 20 days of service of the demand, and thus, have waived their objection. Defendant is entitled to demand a physical examination of Plaintiffs in this action. Accordingly, the motion to compel Plaintiffs’ IME is granted and Plaintiffs are ordered to appear for physical examination with Philip S. Yuan, M.D., on March 13, 2023.

As to sanctions, Plaintiffs have not filed an opposition and thus, 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 $2,319.95 ($2,250 for two no show fees, plus $69.95 in filing fees) in favor of Defendant and against Plaintiffs and counsel of record, Vania Nemanpour, jointly and severally, to be paid within 30 days of this order.

Conclusion

Accordingly, Defendant’s Motion to Compel Plaintiffs’ Independent Medical Examination is GRANTED. Plaintiffs are ordered to appear for physical examination with Philip S. Yuan, M.D., on March 13, 2023, or on a mutually convenient date within 30 days of this order.

Defendant’s request for sanctions is GRANTED. Plaintiffs and counsel of record, Vania Nemanpour, are ordered to pay monetary sanctions to Defendant in the amount of $2,319.95, jointly and severally, within 30 days of this order.

Moving party is ordered to give notice.