Judge: Steven A. Ellis, Case: 20STCV36640, Date: 2024-02-02 Tentative Ruling

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Case Number: 20STCV36640    Hearing Date: February 2, 2024    Dept: 29

Motion to Compel the Independent Medical Examination of Plaintiff filed by Defendant Robert Morton.

Tentative

The motion is granted.

Background

On September 24, 2020, Plaintiff Debra Ann Warren (“Plaintiff”) filed the Complaint in this action against Defendant Robert Morton (“Defendant”), and Does 1 through 50 asserting one cause of action for negligence arising out of an alleged motor vehicle accident on October 12, 2019 on the 405 Freeway.  Defendant filed his Answer to the Complaint on April 20, 2022.

On July 12, 2023, Defendant served a demand for a physical examination of Plaintiff’ on August 22, 2023. (Young Decl., ¶ 3 & Exh. A.) Plaintiff did not appear. (Id., ¶ 3.) On August 31, 2023, Defendant served an amended demand for a physical examination on October 5, 2023. (Id., ¶ 3 & Exh. D.) On October 4, 2023, the examining doctor alerted defense counsel of their unavailability. (Id., ¶ 3.) On October 18, 2023, after confirming Plaintiff’s availability with counsel, Defendant served an amended demand for an examination on November 17, 2023. (Id., ¶ 3 & Exh. H.) On November 16, 2023, after business hours, Plaintiff sent an email of her inability to attend the examination. (Id., ¶ 3 & Exh. I.) On December 15, 2023, Defendant served a demand for an examination on February 2, 2024, subsequently amended and updated to March 5, 2024. (Id., ¶ 3 & Exh. M; Amended Notice, Young Decl., ¶ 3 & Exh. N.)

On December 18, 2023, Defendant filed this motion to compel the physical examination of Plaintiff.  Defendant filed an amended motion, revising the date of the requested examination, on December 27.

No opposition has been filed.

Legal Standard

The Civil Discovery Act authorizes discovery in the form of a physical or mental examination of a party whose physical or mental condition is in controversy in the action. (Code Civ. Proc., § 2032.020, subd. (a).)  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

Plaintiff in this action seeks recovery for physical injuries allegedly sustained in a motor vehicle accident.  (Complaint, ¶¶ 9-12.)  Defendant twice served demands for a physical examination of Plaintiff.  (Young Decl., ¶ 3 & Exhs. A, H.) Plaintiff did not appear. (Id., ¶ 3.) Most recently, Defendant set the examination for November 17, 2023; Plaintiff initially confirmed her availability but then cancelled the evening before the examination. (Id., ¶ 3 & Exhs. G, I.)

Plaintiff did not serve any timely response or objection to the examination demands.

Defendant has made a sufficient showing for the requested relief.  Defendant served a proper demand for a physical examination, and Plaintiff (without objecting) failed to comply. (Code Civ. Proc., § 2032.240, subd. (b), and § 2032.250, subd. (a).)  Moreover, Defendant submitted, with the moving papers, a meet and confer declaration in compliance with the statutory requirement. (Code Civ. Proc., § 2032.250, subd. (a).)

Accordingly, Defendant’s motion to compel is GRANTED.

The Court also GRANTS Defendant’s request for $762.65 in monetary sanctions.  Defendant has shown that as a result of Plaintiff’s failure to submit to the properly noticed physical examination, Defendant has incurred expenses, including a $700 late cancellation fee and a filing fee of $62.65.  (Young Decl., ¶ 5 & Exh. L.) 

Conclusion

The Court GRANTS Defendant’s motion to compel the physical examination of Plaintiff.

The Court ORDERS Plaintiff to appear for a physical examination with Daniel Kaplan, M.D., on March 5, 2024, at 11:30 a.m. at 12400 Bloomfield Ave., 2^nd Floor, Santa Fe Springs, CA 90670.

The Court GRANTS Defendant’s request for sanctions.

The Court ORDERS Plaintiff to pay monetary sanctions under the Civil Discovery Act in the amount of $762.65 within 30 days of notice.

Moving Party is ORDERED to give notice.