Lawzilla Additional Information: Plaintiff is represented by attorney Ruben Vardanyan

Case Number: BC687753 Hearing Date: November 18, 2019 Dept: 4A

Motion to Compel Attendance at a Physical Examination

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On December 20, 2017, Plaintiff Vasile Lindgren (“Plaintiff”) filed a complaint against Defendants Tianli Yang and Xiyuan Tan (“Defendants”) alleging motor vehicle and general negligence for an automobile collision that occurred on April 4, 2017.

On October 22, 2019, Defendants filed a motion to compel Plaintiff’s attendance at a physical examination pursuant to California Code of Civil Procedure section 2032.250.

Trial is set for April 17, 2020.

PARTY’S REQUESTS

Defendants ask the Court to compel Plaintiff to appear for a physical examination by cardiologist Daniel Wohlgelernter, M.D. on December 4, 2019 pursuant to the standards and procedures set forth in the proposed demand served on Plaintiff on October 16, 2019 based on Plaintiff’s failure to appear at prior noticed examinations.

Defendants also ask the Court for $3,670 in monetary sanctions and reimbursement for prior no-show fees.

LEGAL STANDARD

A defendant may demand one physical examination of a plaintiff seeking recovery for personal injuries when: (1) the examination does not include any procedure or diagnostic test that is painful, protracted, or intrusive, and (2) the examination is conducted within 75 miles of the examinee’s residence. (Code Civ. Proc. § 2032.220, subd. (a).)

Where a plaintiff fails to serve a timely response to a demand for a physical examination, the plaintiff waives any objection to the demand and a defendant may move for an order compelling a response. (Code Civ. Proc. § 2032.240, subd. (a)-(b).)

A defendant may compel a plaintiff to comply with a physical examination demand when the plaintiff’s refusal to submit to the physical examination is unwarranted. (Code Civ. Proc. § 2032.250, subd. (a).)

Monetary sanctions are mandatory against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination without substantial justification or under circumstances that makes sanctions unjust. (Code Civ. Proc. § 2032.250, subd. (b).)

DISCUSSION

On July 3, 2019, Defendant served a demand for a physical examination for August 8, 2019 at 9:00 a.m. on Plaintiff by U.S. mail. (Nelms Decl., ¶ 7, Exh. D.) At approximately 7:00 a.m. on August 8, 2019, Dr. Wohlgelernter told Defendant that the address listed on the notice served on July 3, 2019 was incorrect. (Nelms Decl., ¶ 8.) Defendant tried notifying Plaintiff, but was unable to get ahold of Plaintiff and Plaintiff did not call back. (Ibid.) Plaintiff failed to appear for the August 8, 2019 examination. (Ibid.) On August 28, 2019, Defendant served a demand for a physical examination for October 2, 2019 on Plaintiff by U.S. mail. (Nelms Decl., ¶ 9, Exh. E.) Plaintiff failed to appear for the October 2, 2019 examination. (Nelms Decl., ¶ 10.)

The Court finds Plaintiff’s physical examination was properly notice for October 2, 2019, but Plaintiff failed to appear. As such, the motion is properly granted.

The Court also finds the Plaintiff’s failure to appear at the August 8, 2019 examination does not provide any grounds for granting this motion, sanctions, or reimbursement for no-show fees. That notice contained an incorrect location for the examination. It is immaterial that Plaintiff did not respond to Defendant’s correspondence in the two hours leading up to the August 8, 2019 examination because two hours would constitute insufficient notice.

The Court further finds sanctions are properly awarded. No evidence is presented to the Court showing Plaintiff’s failure to appear at the October 2, 2019 examination was due to a substantial justification. Nor are there circumstances here that would make an imposition of sanctions unjust.

Defendant’s request for $3,670 in sanctions consists of 14 hours in drafting the moving papers, 6 hours in reviewing and replying to an opposition, and 8 hours in appearing at the hearing at a rate of $155 an hour plus two $750 no-show fees. (Nelms Decl., ¶¶ 12-13, Exh. G.) The Court finds this to be unreasonable. This is a straight-forward motion, no opposition was filed, and, as stated above, only one no-show fee is justified. Rather, the Court finds $1,215 ($155/hr. x 3 hrs. plus one $750 no-show fee) to be a reasonable amount of sanctions to be imposed against Plaintiff and Plaintiff’s counsel for their abuse of the discovery process.

Therefore, the motion is GRANTED.

Plaintiff is ordered to appear for a physical examination according to the following terms:

Date: December 4, 2019.

Time: 9:30 a.m.

Location: 2021 Santa Monica Blvd., Suite 212, Santa Monica, CA 90404.

Nature: Cardiologist Daniel Wohlgelernter, M.D. is to take an oral history of Plaintiff and person a non-invasive, standard cardiology/cardiovascular examination of Plaintiff, which will consist of taking vital signs, visual inspection, review of systems, coordination testing, mental status and cranial nerve testing, motor and sensory examination, pulmonary exam, examination of the peripheral pulses, blood pressure, and vanous pressure, auscultation as well as palpation of the chest/sternum and the body parts that he claims were injured as a result of the incident.

Plaintiff and Plaintiff’s counsel of record are ordered to pay Defendant $1,215 within 30 days of the date of this order, jointly and severally.

Defendant is ordered to give notice of this ruling.