Case Number: BC650185 Hearing Date: June 11, 2019 Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR AN ORDER COMPELLING COMPLIANCE WITH DEMAND FOR PHYSICAL EXAMINATION

The Court discloses that more than four years ago, Plaintiff’s counsel, Casey Hultin, and I worked together when she was an associate and I was a partner at Irell & Manella. This will not affect the Court’s ability to handle this matter fairly and impartially.

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On February 23, 2017, Plaintiff Patricia Rust (“Plaintiff”) filed this action against Defendants City of Los Angeles and Paul Johnson (collectively, “Defendants”) for motor vehicle and general negligence arising out of an April 4, 2016 automobile collision. Defendant moves to compel Plaintiff’s independent medical examination and monetary sanctions.

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 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 Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code Civ. Proc., § 2032.220, subd. (d)). Within 20 days after service of the demand, the plaintiff to whom the demand is directed shall serve a written statement that he or she 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).)

On November 27, 2018, defense counsel served a demand for physical examination on Plaintiff noticing a physical examination for January 3, 2019 with James Loddengaard, M.D., orthopedic surgeon. (Declaration of Steven M. McGuire, ¶ 5.) On December 28, 2019, Plaintiff’s counsel requested alternative dates for the examination. (Declaration of Maria Varelas, ¶ 3; Exh. E.) On December 31, 2019, defense counsel offered alternative dates of February 7 and February 14. (Varelas Decl., ¶ 4.) Defense counsel never received a response from Plaintiff’s counsel, and so set the examination for February 7, 2019. (Varelas Decl., ¶ 5.) On January 11, 2019, defense counsel served an amended demand on Plaintiff for February 7, 2019. (Varelas Decl., ¶ 5.) Defense counsel sent reminder emails to Plaintiff’s counsel on January 29, 2019 and again on February 6, 2019. (Varelas Decl., ¶ 6.) On February 6, Plaintiff’s counsel sent an email saying Plaintiff was unavailable because she had had foot surgery on February 5. (Declaration of Casey Hultin, ¶ 6.) Plaintiff failed to appear for her February 7, 2019 examination. (McGuire Decl., ¶ 7.)

On February 12, 2019, defense counsel sent an email to Plaintiff’s counsel asking if March 14, 2019 would be agreeable for Plaintiff’s examination. On February 15, 2019, Plaintiff’s counsel responded that Plaintiff agreed to the date. (Varelas Decl., ¶ 7.) An amended notice was served on February 20, 2019 and the examination was confirmed by Plaintiff’s counsel on March 11, 2019. (Varelas Decl., ¶¶ 8, 9.) On March 14, 2019, about 1.5 hours before the examination was to begin, Plaintiff’s counsel sent an email stating Plaintiff was in the hospital preparing for a surgery set for March 21, 2019, and would not be appearing for the examination. (Varelas Decl., ¶ 10.)

After filing this motion, Defendant served a fourth demand setting Plaintiff’s examination for June 20, 2019. Plaintiff states she intends to comply with Defendant’s demand for physical examination and only opposes the imposition of monetary sanctions. Plaintiff says she was unable to attend the examinations based on her medical condition and surgeries. Plaintiff attaches a May 28, 2019 email from Dr. Allen Newman, DDS, stating Plaintiff “was on standby for a CSF leak procedure. Because of this she may have had to cancel or reschedule other appointments.” (Hultin Decl., ¶ 11; Exh. B.) This email does not establish Plaintiff was unavailable on the specific previous noticed dates.

Plaintiff did not establish substantial justification for repeatedly failing to attend her noticed examination or timely object and for not making herself available for an examination for six months. The Motion to compel Plaintiff’s compliance is GRANTED and she is ordered to appear for the June 20, 2019 examination with Dr. Loddengaard. Given Plaintiff’s failures to appear and last minute cancellation, the Motion was reasonably necessary to ensure compliance.

“If a party is required to submit to a physical or mental examination . . . but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction . . .” (Code Civ. Proc., § 2032.410.) The request for monetary sanctions is GRANTED and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $400.00 for two hours at defense counsel’s hourly rate of $200.00, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.