Judge: William A. Crowfoot, Case: 19STCV35732, Date: 2022-07-27 Tentative Ruling

Case Number: 19STCV35732    Hearing Date: July 27, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On February 28, 2020, plaintiff Hue Thi Ngoc Nguyen (“Plaintiff”) filed the operative First Amended Complaint (“FAC”) against defendants Marisa C. Lupo, Tony Delorenzo, Elizabeth Delorenzo, Tony and Elizabeth Delorenzo Family Trust, and Marisa C. Lupo Trust (collectively, “Original Defendants”), asserting two causes of action for premises liability and general negligence.

On October 19, 2020, Plaintiff amended the FAC to substitute BT Real Estate Consultants (“BT”) for the defendant sued fictitiously as Doe 5 (BT and the Original Defendants, collectively, “Defendants”).

The FAC alleges the following. On December 16, 2017, Plaintiff was injured when she tripped and fell over stairs at Defendants’ property in San Gabriel, California. As a result, Plaintiff suffered serious injuries.

On May 27, 2022, Defendants filed the instant motion for order compelling Plaintiff to submit to a physical examination under Code of Civil Procedure sections 2032.240 and 2032.250.

As of July 26, 2022, no opposition to the motion has been filed.

II.        LEGAL STANDARD

A defendant may demand one physical examination of a plaintiff seeking recovery for personal injuries when: (1) the examination does not include any procedure or diagnostic test that is painful, protracted, or intrusive, and (2) the examination is conducted within 75 miles of the examinee’s residence. (Code Civ. Proc., § 2032.220, subd. (a).)

A plaintiff’s response must be served within twenty days after the service of the demand was made. (Code Civ. Proc., § 2032.230, subd. (b).)

“If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand. The court, on motion, may relieve that plaintiff from this waiver on its determination that both of the following conditions are satisfied: ¶ (1) The plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230. ¶ (2) The plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2032.240, subd. (a).)

A plaintiff’s response must be served within twenty days after the service of the demand was made. (Code Civ. Proc., § 2032.230, subd. (b).)

Monetary sanctions are mandatory against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination without substantial justification or under circumstances that makes sanctions unjust. (Code Civ. Proc., § 2032.250, subd. (b).)

III.      DISCUSSION

          Defendants submit their counsel’s declaration in support of their motion. Defense counsel attests to the following facts.

On January 26, 2022, defense counsel’s office emailed Plaintiff’s counsel and asked if Plaintiff would be available for a medical examination with the Defendants’ medical expert Tony Feuerman, M.D. (“Dr. Feuerman”), on May 16, 2022. (Motion, Asel Decl., ¶ 7; Exhibit H.) Plaintiff’s counsel responded that May 16 worked for Plaintiff. (Asel Decl., ¶ 7; Exhibit H.) Therefore, on February 11, 2022, Defendants served Plaintiff a demand for physical examination for May 16, 2022, by Dr. Feuerman, who specializes in neurological surgery. (Asel Decl., ¶ 8; Exhibit I.) Plaintiff did not object or otherwise respond to the demand for physical examination by Dr. Feuerman. (Asel Decl., ¶ 9.)

On May 6, 2022, defense counsel’s office emailed Plaintiff’s counsel asking the latter to confirm that Plaintiff will appear at the physical examination on May 16. (Asel Decl., ¶ 9.) Even though Defendants had served the demand via the email address that Plaintiff had indicated it would use to accept service, Plaintiff’s counsel responded that their office did not have receive any notice of the examination demand. (Asel Decl., ¶¶ 6, 9.) On May 11, 2022, defense counsel’s office again emailed Plaintiff’s counsel asking for confirmation if Plaintiff will appear at the May 16 examination, and the Plaintiff’s counsel responded that the examination will “not [be] going forward.” (Asel Decl., ¶¶ 6, 9.) As of the date defense counsel signed her declaration, on May 27, 2022, Plaintiff had not appeared for a physical examination with Dr. Feuerman. (Asel Decl., ¶ 12.)

The Court finds it proper to grant the motion. Plaintiff has not filed any opposition contradicting the above evidence. In addition, Plaintiff failed to serve a response within 20 days of Defendants serving the demand on February 11, 2022. (Code Civ. Proc., § 2032.230, subd. (b).) By failing to serve a response, Plaintiff has waived any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).)

Accordingly, the Court will order Plaintiff to appear at the physical examination on August 8, 2022, by Dr. Feuerman as the Defendants have requested. (Notice of Motion, p. 2:5-9.)

Defendants seek sanctions of $500.46 against Plaintiff and Plaintiff’s attorneys of record Harry Nalbandyan and Levin & Nalbandyan, LLP. (Notice of Motion, p. 3:16-18; Asel Decl., ¶ 14.) The amount consists of (a) $60 filing fee plus (b) 1 hour defense counsel spent preparing the moving papers, 0.75 hours counsel anticipated spending reviewing any opposition and preparing a reply, and 1 hour counsel anticipates spending at the hearing for this motion, at a billing rate of $160.17, a total of $440.47. (Asel Decl., ¶ 14.) However, Plaintiff did not file an opposition to the motion, and Defendants did not file a reply.

Accordingly, the Court grants the request for monetary sanctions but in the reduced amount of $400.

IV.      CONCLUSION

          The Motion to Compel Plaintiff’s Physical Examination and Request for Monetary Sanctions is GRANTED.

          The Court orders plaintiff Hue Thi Ngoc Nguyen to appear at her physical examination on August 8, 2022, at 1:00 p.m., at 16133 Ventura Boulevard, Suite 1105, Encino, CA 91436, Phone: (818) 905-9642, or on a different date and place that the parties agreed to in writing.

          The Court orders plaintiff Hue Thi Ngoc Nguyen to pay $400 total in monetary sanctions to defendants Marisa C. Lupo, Tony Delorenzo, Elizabeth Delorenzo, Tony and Elizabeth Delorenzo Family Trust, Marisa C. Lupo Trust, and BT Real Estate Consultants within twenty (20) days of this order.

Moving parties to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.