Case Number: BS172118 Hearing Date: June 11, 2018 Dept: 7

[TENTATIVE] ORDER RE: PETITIONER/RESPONDENT’S MOTION TO COMPEL RESPONDENT/CLAIMANT’S INDEPENDENT MEDICAL EXAMINATION; MOTION GRANTED

This insurance subrogation action arises out of a June 13, 2013 automobile accident. Petitioner/Respondent Interinsurance Exchange of the Automobile Club (“Interinsurance Exchange” or “Petitioner”) seeks to compel the independent medical examination of Respondent/Claimant Richard Wah Kwan (“Kwan”).

Interinsurance Exchange served a Demand for Independent Medical Examination on Kwan for an examination with William Dillin, M.D. (Declaration of Jane Win-Thu, ¶¶ 6, 7; Exh. B, C.) Kwan failed to appear for his IME and Petitioner filed a motion to compel his IME. (Win-Thu Decl., ¶ 11.) However, based on Kwan’s counsel’s representations that Kwan would appear for IME and would reimburse Petitioner the $2,000.00 fee incurred by Kwan’s nonappearance with Dr. Dillin, Petitioner withdrew its motion to compel. (Win-Thu Decl., ¶ 12.) However, to date, there has been no reimbursement and Kwan has not appeared for his IME. (Win-Thu Decl., ¶¶ 13, 14.) Petitioner seeks to compel Kwan’s IME 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 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)).

Kwan filed no opposition to this Motion. Petitioner is entitled to demand a physical examination of Kwan, who is making a claim for personal injuries. Accordingly, the Motion to compel the IME of Kwan is GRANTED. Kwan is ordered to submit to an IME with Dr. Dillin on July 10, 2018 at 9:00 a.m. per Petitioner’s Amended Notice served on May 14, 2018.

“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 of Civ. Proc., § 2032.250, subd. (b).)

Petitioner’s request for monetary sanctions is GRANTED and imposed against Kwan and his counsel of record, jointly and severally, in the amount of $2,390.00, for two hours preparing this unopposed motion and attending the hearing, a $60.00 filing fee, and the $2,000.00 fee incurred from Dr. Dillin’s office, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.