Lawzilla Update: We believe the final order only imposed sanctions on plaintiff and not her attorney.

Case Number: BC610685 Hearing Date: June 04, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR MONETARY SANCTIONS; MOTION GRANTED

On February 17, 2016, Plaintiff Guadalupe Arias (“Plaintiff”) filed this action against Defendant David Rodriguez (“Defendant”) for personal injuries relating to a vehicle versus pedestrian accident. Defendant seeks monetary sanctions for the costs incurred by Plaintiff’s failures to appear for her Independent Medical Examination (IME).

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code of Civ. Proc., § 2032.220, subd. (a).) A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code of Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code of Civ. Proc., § 2032.220, subd. (d)).

Defendant served a demand for IME on Plaintiff for May 23, 2017 with George K. Henry Ph.D. (Declaration of James H. Goldman, ¶ 2.) Plaintiff did not respond and did not appear for the IME. Defendant served another demand for IME for June 28, 2017, for which Plaintiff did not appear. (Goldman Decl., ¶ 3.) A third IME was scheduled for July 27, 2017. On this date, Plaintiff arrived two hours late and had to leave by 1:00 p.m., preventing Dr. Henry from completing the evaluation. A second session was scheduled for October 4, 2017, but Plaintiff failed to appear. Plaintiff’s IME was completed on October 18, 2017. However, Defendant incurred $7,200.00 from Dr. Henry’s office for Plaintiff’s multiple failures to appear and complete her examination. Defendant seeks reimbursement for these costs.

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code of Civ. Proc., § 2023.030, subd. (a).)

Plaintiff contends Defendant’s notice of IME was improper because Defendant had to seek leave of the court or stipulation for an IME by a neuropsychologist. (Declaration of Hussein Saleh, ¶ 2.) Plaintiff also argues she did not receive notice of the June 28, 2017 demand. (Saleh Decl., ¶ 6.) Plaintiff contends the only “valid” demands for a mental examination were after Plaintiff agreed to undergo one, which was after the July 17, 2017 appointment.

In Reply, Defendant argues that since Plaintiff never responded to the May and June 2017 demands, she waived her objections to the appointments being unilaterally set.

However, the Court agrees with Plaintiff that Defendant was required to seek leave of the court or stipulation before demanding a mental examination. (Code of Civ. Proc., § 2032.310, subd. (b).) The responsibility was on Defendant to seek leave of the court before making the demand, not on Plaintiff to object after Defendant unilaterally made the demand.

Accordingly, Defendant is entitled to reimbursement for the shortened appointment on July 27, 2017 and the missed appointment on October 4, 2017, and $360.00 for two hours preparing this Motion and Reply and attending the hearing, and the filing fee. Plaintiff and her counsel of record, jointly and severally, are to pay $3,960.00 to defense counsel within twenty (20) days of the date of this Order.

Moving party to give notice.