Judge: Steven A. Ellis, Case: 23STCV05567, Date: 2025-06-11 Tentative Ruling

Case Number: 23STCV05567    Hearing Date: June 11, 2025    Dept: 29

Quiroa v. The Check Cashing Place, Inc.
23STCV05567
Defendants’ Motion to Compel Plaintiff to Appear for Physical Examination

Tentative

The motion is granted.

The request for sanctions is granted in part.

Background

On March 14, 2023, Ernestina Quiroa (“Plaintiff”) filed a complaint against The Check Cashing Place, Inc., R&L Management Co., Inc. (collectively “Defendants”), Vermont Cap Investments, LLC, and Does 1 through 50 for general negligence and premises liability arising out of an alleged trip and fall on February 23, 2022 at or near 311 South Vermont Avenue in Los Angeles.

On June 20, 2024, Defendants filed an answer to Plaintiff’s complaint.

On May 14, 2025, Defendants filed this motion to compel Plaintiff to submit for a physical examination. Defendants also seek sanctions.

No opposition has been filed.

Trial is set for September 15, 2025.

Legal Standard

“Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2032.020, subd. (a).)

Code of Civil Procedure section 2032.220 provides that in a personal injury action, the defendant may demand one physical examination of plaintiff as of right, without advance leave of the court:

“(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 ….”

(Code Civ. Proc., § 2032.220.)

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 respond to the demand for a physical examination, Code of Civil Procedure section 2032.240 provides that the defendant “may move for an order compelling response and compliance with [the] demand.”  (Code Civ. Proc., § 2032.420, subd. (b).)  No meet and confer is required.

“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 response and 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., § 2032.240, subd. (c).)

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 duly noticed a demand for a physical examination of Plaintiff by Steven W. Meier, M.D., who specializes in orthopedic medicine, with the examination scheduled for February 11, 2025.  (Cochran Decl., ¶ 5 & Exh. B.)  Plaintiff did not serve any objection or other response to the examination and did not appear.  (Id., ¶ 7.)  As a result, Dr. Meier charged Defendants a $1,000 no-show fee.  (Id., ¶ 7 & Exh. D.)

Defendants duly noticed another demand for a physical examination of Plaintiff by Dr. Meier, with the examination scheduled for April 3 (later continued to April 22 by the agreement of the parties.)  (Id., ¶¶ 12-15 & Exhs. H-I.)  Plaintiff did not serve any objection or other response to the examination and did not appear.  (Id., ¶ 19.)  As a result, Dr. Meier charged Defendants a second $1,000 no-show fee.  (Id., ¶ 19 & Exh. L.)

Defendants need not show anything more.  They noticed a demand for a physical examination.  Plaintiff did not respond, thereby waiving any objection to the demand.  The motion to compel is granted.

The request for sanctions is granted in part.  Plaintiff failed to submit to an authorized method of discovery; this is a misuse of the discovery process for which 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).)  The Court sets sanctions in the amount of $2,810, calculated based on three hours of attorney time, multiplied by counsel’s reasonable billing rate of $250 per hour, plus $2,000 in documented no-show fees, plus the $60 filing fee.

Finally, the Court notes that in their reply, Defendants request a trial continuance.  That request is denied without prejudice; a party cannot in a reply seek relief beyond that which is set forth in the notice of motion and motion.

Conclusion

The Court GRANTS the motion of Defendants The Check Cashing Place, Inc. and R&L Management Co., Inc. to compel Plaintiff Ernestina Quiroa to comply with the demand for physical examination.

The Court ORDERS Plaintiff Ernestina Quiroa to comply with the demand for a physical examination served on February 18, 2025, and appear for and submit to a physical examination by Steven W. Meier, M.D., at 8641 Wilshire Boulevard, Suite 215, Beverly Hills, California on ___________, 2025, at ______ a.m./p.m.

The Court GRANTS IN PART the request for sanctions.

The Court ORDERS Plaintiff Ernestina Quiroa and her counsel Igor Fradkin, Esq., jointly and severally, to pay monetary sanctions under the Civil Discovery Act in the amount of $2,810 to Defendants (through counsel) within 30 days of notice.

Moving Party is ORDERED to give notice.