King v. Avery Construction CASE NO. 113CV248928
DATE: 27 June 2014 TIME: 9:00 LINE NUMBER: 13
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, Defendant’s Motion to Compel an Independent Medical Examination of Plaintiff was argued and submitted.

Therefore, defense counsel served a statement of non-opposition.

On 20 June 2014, counsel for Plaintiff indicated that he has filed a motion to be relieved and that motion is now scheduled for 10 July 2014. In conjunction with that motion, he has also filed a motion to continue the trial date. He believes the examination request is appropriate but his client is now interviewing with other counsel and feels that this motion should be noticed to the new counsel. Defendant, ACCO Management Co., was erroneously sued as Avery Construction. Plaintiff, Lynn King, is a 92 year-old woman who claims that she fell backwards down the exterior stairs of her second floor apartment because the handrail was too wide for her to grasp after slipping on debris left by a construction crew from Defendant working on her neighbor’s apartment. She claims physical and neurological injuries and is suing for negligence,

II. Discovery Dispute

On 23 May 2014, Defendant sought to take a physical examination of Plaintiff to address her injury claims.

Defendant retained a neurologist a neurologist, Dr. Allen Bott, to examine Plaintiff on 23 May 2014 at 1:00 PM. Dr. Bott’s office is located at 400 29th Street, Suite 402, Oakland California. The Defendant states that this examination is non-invasive and designed to test Plaintiff’s current levels of pain, range, and function as well as to assess Plaintiff’s physical condition and alleged injuries. The Defendant states that the examination will not consist of any diagnostic tests or procedures that are considered to be intrusive, protracted, or painful. The Defendant’s state that they ultimate seek to obtain through this examination an assessment of Plaintiff’s current and future medical, physical condition and prognosis.

Defendant timely served Plaintiff with a Demand for Independent medical Examination of Plaintiff on 21 April 2014. Plaintiff has filed no written objections to this demand.

On 20 May 2014, Plaintiff’s counsel told Defendant’s counsel that Plaintiff would not attend the examination without further explanation. Defendant’s counsel attempted to meet and confer via emails between her and the Plaintiff’s counsel. However, Plaintiff did not attend the 23 May 2014 examination.

Trial on this matter will be held 25 August 2014.

Plaintiff’s is requesting a court order compelling the Plaintiff to attend an independent medical examination as well as monetary sanctions. They also indicate that should the Plaintiff fail to comply with the court order, should it be granted, they would request evidentiary sanctions barring Plaintiff from raising any evidence regarding her alleged injuries as a result of the incident at trial. The issue of non-monetary sanctions is not before the court today.

III. Analysis

A. Motion to Compel Independent Medical Examination of Plaintiff

“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). The demand “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination.” (Code Civ. Proc. § 2032.220(c)). The examination must be at least 30 days after the service of the demand. (See Code Civ. Proc. § 2032.220(d)).

After a code-compliant, written demand is served on the Plaintiff, the Plaintiff must serve on Defendant within 20 days a written statement stating whether “the examinee 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).

If the Plaintiff fails to make a timely response, objections are deemed waive, although the Court may relieve this waiver on motion. (See Code Civ. Proc. § 2032.240(a)). “The Defendant may move for an order compelling response and compliance with a demand for physical examination.” (Code Civ. Proc. § 2032.240(b)).

The only issue the Court sees with Defendant’s demand is that they have not provided the Court sufficient evidence to know whether Dr. Bott’s office is within 75 miles of the residence of Plaintiff. Otherwise, Defendant has made a timely, code-compliant demand. The Plaintiff has failed to provide timely written responses to Defendant’s demand and thus their objections are deemed waived. The Plaintiff’s failure to attend the scheduled examination entitles the Defendant to file a Motion to Compel Independent Medical Examination of Plaintiff. Accordingly, Defendant’s Motion to Compel Independent Medical Examination of Plaintiff is GRANTED so long as the provided address for Dr. Bott’s office is within 75 miles of the Plaintiff’s residence.

B. Meet and Confer

A code-compliant attempt to meet and confer is an explicit prerequisite in many situations including physical examinations (Code Civ. Proc. § 2032.250(a). Under California Code of Civil Procedure § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The failure to attempt to meet and confer where required is an explicitly named misuse of the discovery process. (See Code Civ. Pro. § 2023.010(i)).

Defendant has a code-compliant Declaration stating its good faith attempts at informal resolution .

C. Sanctions Generally

Code of Civil Procedure, § 2023.040 states: “A request for a 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. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (See Rule of Court 2.30).

Defendant makes a request for monetary sanctions. The request is code-compliant.

In support of the request for sanctions, Defendant cites Code of Civil Procedure § 2023.010. Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Defendant further cites section 2023.030, which provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

The Plaintiff has not unsuccessfully opposed the Defendant’s motions. (Code Civ. Proc. § 2030.290; 2031.300). Therefore, reliance on § 2032.240 and 2032.410 for monetary sanctions is inapplicable in this case because the Plaintiff has not unsuccessfully opposed the Defendant’s motion. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.

The Court suggests the proper procedure would be to put the following language in the notice of the motion:

“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Order

Accordingly, Defendant’s Motion to Compel Independent Medical Examination of Plaintiff is GRANTED so long as the provided address for Dr. Bott’s office is within 75 miles of the Plaintiff’s residence.

The request for monetary sanctions is DENIED.