Judge: Steven A. Ellis, Case: 20STCV00656, Date: 2024-03-28 Tentative Ruling

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Case Number: 20STCV00656    Hearing Date: March 28, 2024    Dept: 29

Defendants’ Motion to Compel the Independent Medical Examination of Plaintiff

Tentative

The motion is granted.

The request for sanctions is denied.

Background

On January 7, 2020, Christian Argueta (“Plaintiff”) filed a complaint against Roman Smbatyan, Smbat Smbatyan, Leanna Furtado, and Does 1 through 50 for negligence arising from an automobile accident occurring on January 9, 2018.

Defendants Roman Smbatyan and Smbat Smbatyan (collectively “Defendants”) filed their answers on August 11 and October 25, 2021.

On November 22, 2022, Defendants served a demand for a physical examination of Plaintiff for February 6, 2023. (Reed Decl., ¶ 5.)  Plaintiff did not respond to the demand, object, or appear.  (Id., ¶ 6.)  On February 8, 2023, Defendant served a second demand for a physical examination of Plaintiff, this one set for March 23.  (Id., ¶ 7.) Plaintiff timely responded and objected to the date.  (Id., ¶ 8.)  Following unsuccessful efforts to communicate with Plaintiff to select a mutually available date, Defendants served a third demand for a physical examination of Plaintiff, this one set for May 15, 2023.  (Id., ¶¶ 9-11.)  Plaintiff did not respond to the demand, object, or appear.  (Id., ¶ 12.) 

On July 5, 2023, Defendants filed this motion to compel the physical examination of Plaintiff.  Defendants also seek sanctions.

No opposition has been filed.

Legal Standard

Code of Civil Procedure section 2032.220 provides, in pertinent part:

(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.

(b)  A defendant may make a demand under this article without leave of court ….

(c)   A demand under subdivision (a) shall specify 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.

(d)  A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand ….

Within 20 days of service of a demand for a physical examination, the plaintiff to whom the demand is directed must respond in writing and state that the plaintiff “will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination.”  (Code Civ. Proc., § 2032.230, subd. (a).)  Failure to serve a timely response waives any objection to the demand.  (Code Civ. Proc., § 2032.240, subd. (a).)

If a plaintiff fails to comply, the defendant may move for an order compelling plaintiff to appear at and submit to a physical examination. (Code Civ. Proc., § 2032.240, subd. (b), and § 2032.250, subd. (a).)  The motion “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., § 2032.250, subd. (a).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.”  (Code Civ. Proc., § 2032.250, subd. (b).)

In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.”  Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Code Civ. Proc., § 2023.030, subd. (a).) 

Discussion

Defendants served demands for physical examinations of Plaintiff scheduled for February 6 and March 23, 2023, but Plaintiff did not appear. (Reed Decl., ¶¶ 5-8.)  After efforts to communicate with Plaintiff’s counsel to select a mutually available date, Defendants served a third demand for a physical examination of Plaintiff, this one scheduled for May 15, 2023.  (Id., ¶¶ 9-11.)  Plaintiff did not respond to the demand, object, or appear.  (Id., ¶ 12.)

Defendants do not need to show anything more.  Their motion to compel Plaintiff to appear for a physical examination is GRANTED.

Defendants’ request for sanctions is denied.  Under the applicable code section, Code of Civil Procedure section 2032.250, subdivision (b), the court is authorized to impose a sanction “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination.”  Here, however, Plaintiff has not opposed the motion.

Conclusion

The Court GRANTS Defendants’ motion.

The Court ORDERS Plaintiff to appear for and submit to a physical examination by Philip S. Yuan, M.D., an orthopedic surgeon, at 2760 Atlantic Avenue, Long Beach, California 90806 on _____________________, 2024, at ________ am/pm.

The Court DENIES Defendants’ request for sanctions.

Moving Party is ORDERED to give notice.