Case Name: Barbara Joan Antrobus v. Vallco International Shopping Center, LLC, et al.
Case No.: 2014-1-CV-268988

Factual and Procedural Background

This is an action for premises liability. In her complaint, plaintiff Barbara Joan Antrobus (“Plaintiff”) alleges the following: On August 24, 2013, Plaintiff was shopping at a mall owned by defendant Vallco Shopping Mall, LLC (“VSM”), where she “approached a set of stairs that was insufficiently distinguished from the level surface of the walkway.” (Compl., ¶ 6.) Due to the design of the stairway, inadequate lighting, and the lack of signage or warnings, Plaintiff missed a step and fell, causing her to suffer personal injuries. (Compl., ¶¶ 6-7.) The complaint asserts one cause of action for premises liability.

On February 11, 2016, VSM served Plaintiff with a demand to submit to an independent medical examination (“IME”). (See Declaration of Patrick J. Torsney at Exhibit A.)

On February 24, 2016, Plaintiff objected to the demand because the scheduled IME was not within 75 miles of her residence as required under Code of Civil Procedure section 2032.220. (See Declaration of Patrick J. Torsney at Exhibit B.)

The IME was scheduled to occur on March 31, 2016 in Larkspur, California. Plaintiff did not appear for the IME. Following Plaintiff’s nonappearance, VSM (through counsel) sent two emails to Plaintiff’s attorney in an attempt to resolve the discovery dispute and reschedule the IME. (See Declaration of Patrick J. Torsney at Exhibit C.) The parties were unable to resolve the discovery dispute and now seek intervention from the Court.

Currently before the Court is (1) VSM’s motion to Compel IME and (2) Plaintiff’s motion for protective order. VSM filed a request for judicial notice in conjunction with the motion. Both sides filed written oppositions. VSM filed reply papers. VSM seeks an award of monetary sanctions in conjunction with the motions.

Motion to Compel IME

VSM moves to compel Plaintiff to attend an IME because she failed to appear at her previously scheduled examination and her physical condition is directly in controversy in this personal injury action.

Request for Judicial Notice

VSM requests judicial notice of a copy of the GOOGLE MAPS distance from Plaintiff’s residence to the location of the IME. (See Request for Judicial Notice at Exhibit D). The Court finds that the map is subject to judicial notice under Evidence Code section 352, subdivision (h) as a fact or proposition that is not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See United States v. Perea-Rey (9th Cir. 2012) 680 F.3d 1179, 1182, fn. 1[finding “Google map” to be a source “ ‘whose accuracy cannot reasonably be questioned’ ”].)

Accordingly, the request for judicial notice is GRANTED.

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, subd. (a)(1)-(2).)

“If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff’s response to that demand, deems that any modification of the demand, or any 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).)

Analysis

The parties dispute whether the total distance of the IME is within 75 miles of Plaintiff’s residence as required by statute. In opposition, Plaintiff provides her own Google Maps showing the total distance to be 78.4 miles from her residence to the examination. (See Declaration of John K. Crowley at Exhibit B.) However, Plaintiff’s map along with the map submitted by VSM, provide alternative routes showing distances of 66.1 miles and 64.3 miles from Plaintiff’s residence to the examination location. (Ibid.; Request for Judicial Notice at Exhibit D.) In fact, the alternative routes appear to provide more direct paths between Plaintiff’s residence and the examination. Given these alternative routes, the Court concludes that the total distance of the IME is within 75 miles of Plaintiff’s residence and thus complies with the statute. Other than the distance, Plaintiff does not otherwise contest the motion.

Therefore, the motion to compel IME is GRANTED. Plaintiff shall submit to a medical examination performed by Dr. Michael J. Oechsel, M.D., whose specialty is orthopedics. The examination shall take place at 18 Bon Air Road in Larkspur, California on September 1, 2016 at 1:30 p.m. The examination shall consist of a full and complete physical examination to determine the exact nature and extent of the injuries in controversy allegedly suffered by Plaintiff as a result of acts alleged in the complaint. No procedure causing undue pain or discomfort or endangering Plaintiff’s life or health shall be used.

Request for Sanctions

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. (Code Civ. Proc., 2032.250, subd. (b).)

VSM’s request for monetary sanctions is DENIED as the Notice of Motion fails to request sanctions against Plaintiff or her counsel. (See Code Civ. Proc., § 2023.040 [“A request for sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”].)

Motion for Protective Order

Plaintiff moves for a protective order on the sole ground that the IME is scheduled at a place in excess of 75 miles from her residence. For the reasons stated above, this argument fails and thus the motion for protective order is DENIED.

In opposition, VSM seeks $1,200 in monetary sanctions which includes one hour preparing the opposing papers at a billing rate of $200 per hour. The amount also includes a $1,000 IME cancellation fee. The Court finds that VSM was substantially justified in opposing the motion. Furthermore, there are no circumstances that make imposing the sanction unjust.

Accordingly, the request for monetary sanctions is GRANTED. Plaintiff’s counsel shall pay $1,200 to counsel for VSM within 20 calendar days of this Order.