Case Number: BC630944 Hearing Date: February 05, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

dwayne gainer,

Plaintiff,

v.

ontario 4th st. lp, et al.,

Defendants.

Case No.: BC630944

Hearing Date: February 5, 2019

[TENTATIVE] order RE:

Motion to compel independent medical examination

motion to compel deposition

BACKGROUND

Plaintiff Dwayne Gainer sued Defendants Ontario 4th St. LP, Whispering Fountain Apartments, RPK Development, and Korda Group (“Defendants”) based on injuries he sustained after he fell at Defendants’ property. Defendants move for an order compelling Plaintiff to submit to a physical examination. Defendants also move to compel Plaintiff to sit for deposition. Plaintiff has not opposed the motions. The motions are granted.

Legal Standard

When the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may obtain a physical examination of the plaintiff. (Code Civ. Proc., §§ 2032.020, 2032.220.) A defendant is permitted to one physical examination of the plaintiff in a personal injury action on demand. (Code Civ. Proc., § 2032.220, subd. (a).)

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).)

DISCUSSION

Defendants noticed a medical examination of Plaintiff for September 14, 2018. Plaintiff did not appear for the medical examination or attempt to reschedule the examination. Because Plaintiff failed to respond to the demand, Plaintiff has waived any objection thereto. (Code Civ. Proc., § 2032.240, subd. (a).) Therefore, the Court grants Defendants’ motion to compel Plaintiff to submit to an independent medical examination.

Defendants noticed Plaintiff’s deposition for August 30, 2018. (See Declaration of Fred B. Smith, Exhibit D.) Plaintiff did not timely object to the deposition notice, but Plaintiff’s counsel informed Defendant’s counsel on the day before the deposition that Plaintiff would not appear for deposition. (See Declaration of Fred B. Smith, ¶ 7.) As Plaintiff did not timely object to the deposition notice, Plaintiff has waived any objections thereto. (Code Civ. Proc., § 2025.410, subds. (a)-(b).) Accordingly, the motion to compel deposition is granted.

The Court concludes that Plaintiff’s failure to appear for his independent medical examination and his deposition, and forcing Defendants to file this motion, warrant sanctions per Code of Civil Procedure sections 2032.240, subdivision (c) and 2025.450, subdivision (g). The Court imposes sanctions against Plaintiff and his attorneys of record, the Law Offices of Bob B. Khakshooy, in the amount of $820, which represents four hours of attorney time to prepare and attend the hearing on these motions at $175 per hour, plus two filing fees of $60 each.

CONCLUSION AND ORDER

The motion to compel a physical examination of the Plaintiff is granted. Plaintiff is to appear for a physical examination with Dr. Tye J. Ouzounian, M.D. at 5620 Wilbur Avenue, Suite 216, in Tarzana, within thirty (30) days of notice of this order unless Defendants stipulate to a later date.

The motion to compel the deposition of Plaintiff is granted. Plaintiff is to appear for deposition within thirty (30) days of notice of this order unless Defendants stipulate to a later date.

Plaintiff and his counsel of record, the Law Offices of Bob B. Khakshooy, jointly and severally, are ordered to pay sanctions to Defendants, by and through counsel, in the amount of $820, within 30 days of notice of this order.

DATED: February 5, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court