Case Number: BC614012 Hearing Date: December 12, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Patricia francis,

Plaintiff,

v.

chad sullivan, et al.,

Defendants.

Case No.: BC614012

Hearing Date: December 12, 2018

[TENTATIVE] order RE:

motion to compel Plaintiff’s attendance at physical examination

BACKGROUND

Plaintiff Patricia Francis (“Plaintiff”) sued Defendants Chad Sullivan and Christina Sullivan (“Defendants”) for negligence and strict liability after Defendants’ dog attacked Plaintiff. Plaintiff claims this attack resulted in injuries to her left wrist, left shoulder, left arm, left thumb, left hip, left buttocks, and left knee. Plaintiff objected to Defendants’ demand for Independent Medical Examination (“IME”). Defendants have brought the instant motion to compel Plaintiff to submit to the IME. Plaintiff opposes the motion, and Defendants have replied. The motion is granted.

LEGAL STANDARD

CCP §2032.020 provides that a party may obtain discovery by means of a physical or mental examination of a party to the action in any action in which the mental or physical condition of that party is in controversy in the action. (Code Civ. Proc., § 2032.020, subd. (a).) This examination must be conducted by a licensed physician or other appropriate licensed health care practitioner. (Code Civ. Proc., § 2032.020, subd. (b).)

CCP §2032.220 provides that in any case in which a plaintiff seeks the recovery of personal injuries, any defendant may demand one physical examination of plaintiff, so long as the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive, and is conducted within 75 miles of the residence of the examinee. (Code Civ. Proc.,

§ 2032.020.)

“If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff’s response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand.” (Code Civ. Proc., § 2032.250(a).)

DISCUSSION

Defendants move for an order compelling Plaintiff’s attendance at an IME with an orthopedic surgeon, Stephen P. Kay, M.D., at 2080 Century Park East, Suite 1204, in Los Angeles. Defendants originally noticed their motion for October 5, 2018, and sought to set the examination for October 8, 2018, beginning at 1:30 PM. In opposition to the motion, Plaintiff stated that she would appear on that date. (Plaintiff’s Opposition to Defendant’s Motion to Compel Plaintiff’s Medical Exam, p. 1.) Based on this representation, Defendants continued their motion to December 12, 2018. However, Plaintiff did not appear for the IME on October 8, 2018. Now, Defendants seek to compel Plaintiff to appear for an examination on February 5, 2019, at 11:00 a.m.

Plaintiff objected to the demand for IME on the basis that Defendants unilaterally scheduled it for August 21, 2018, and then unilaterally advanced it to July 30, 2018. Plaintiff did not assert any other objections. (Declaration of Heather M. Roth in Support of Motion for Order Compelling Physical Examination, Exhibit F.) But those issues appear to have been resolved, because on September 21, 2018, Plaintiff’s counsel confirmed that Plaintiff would appear for her IME on October 8, 2018. (Declaration of Heather M. Roth in Support of Reply, Exhibit A.) Only on October 2, 2018 did Plaintiff’s counsel state that she would be out of the state on the agreed-upon date for the IME. (Declaration of Heather M. Roth in Support of Motion for Order Compelling Physical Examination, Exhibit C.)

Plaintiff concedes that she must appear for an IME. Plaintiff’s only objection to the IME was that Defendants unilaterally selected the date. However, Plaintiff agreed to appear on a different date, and then reneged on that agreement. As Plaintiff has failed to submit to the IME without justification, the Court grants the motion to compel Plaintiff to appear on February 5, 2019, at 11:00 a.m., unless Defendants agree to a different date/time.

Both parties request sanctions. Under CCP § 2032.250, the Court “shall” impose monetary sanctions on any party who unsuccessfully makes or opposes a motion to compel compliance with a demand for physical examination “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.” The Court finds that Plaintiff has not acted with substantial justification. While Plaintiff represented that she would attend her IME, she reneged on that agreement. Sanctions are warranted.

“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.” (Code Civ. Proc., § 2023.040.) Defendants seek sanctions against Plaintiff and “B&D Law Group, ALPC . . . .” (Notice of Motion, p. 3.) Defendants failed to identify each attorney against whom they seek sanctions. Defendants’ notice of their request for sanctions against Plaintiff’s counsel is therefore inadequate. The notice of the request for sanctions against Plaintiff is sufficient. The court awards sanctions against Plaintiff for two hours of attorney time to prepare this motion and attend the hearing at $143.75 per hour, plus the $60 filing fee and $86 in Court Call fees, for a total of $433.50.

CONCLUSION AND ORDER

Defendants’ motion to compel Plaintiff’s attendance at the IME is granted. Plaintiff is ordered to submit to a physical examination by Stephen P. Kay, M.D. at 2080 Century Park East, Suite 1204, in Los Angeles on February 5, 2019, at 11:00 a.m. unless Defendants agree to a different date/time.

The request for sanctions is granted as to sanctions in the amount of $433.50 against Plaintiff, to be paid to Defendants, by and through counsel, within 30 days of this order.

Defendants are ordered to provide notice of this order, and file proof of service of such.

DATED: December 12, 2018 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court