Case Number: BC651101 Hearing Date: December 11, 2018 Dept: A

# 7. Victoria Gutierrez v. WCPP Risk, et al.

Case No.: BC651101

Matter on calendar for: motion to compel independent medical examination and discovery sanctions

Tentative ruling:

I. Background

This is a personal injury action. Plaintiff Victoria Gutierrez slipped on the sidewalk of a premises managed by defendant Property Management Associates (“PMA”). PMA filed a cross-complaint against Brightview Landscapes, LLC, alleging equitable claims.

PMA moves to compel plaintiff to undergo an independent medical exam (“IME”). The motion is opposed.

An informal discovery conference has not been held on this issue.

For the reasons set forth below, the Court grants the motion.

II. Standard

Code of Civil Procedure § 2032.220 allows a defendant to demand one physical examination of the plaintiff if the plaintiff is seeking recovery for personal injuries. If a party fails to submit to a physical or mental examination, the court may, on a motion of the party entitled to the examination, issue monetary sanctions. (C.C.P., § 2032.410.)

Notwithstanding the outcome of a particular discovery motion, “the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (C.C.P., § 2023.020.)

III. Analysis

The IME was first scheduled for July 30, 2018, but Gutierrez arrived outside the 20-minute late arrival grace period. The IME was rescheduled to September 18, 2018, but Gutierrez cancelled within 48 hours of that date. PMA included in both demands for an IME that a $900 no-show fee would be assessed if Gutierrez was more than 20 minutes late or cancelled less than 48 hours from the appointment. PMA declares that its doctor, Barry Ludwig, agreed to waive the first $900 fee but that the second $900 fee must still be paid.

PMA’s meet and confer attempts were “regarding the outstanding payment” and “Defense counsel anticipates that if it schedules a third examination with Dr. Ludwig, Plaintiff will not appear, or will again appear untimely, and incur another fee.” (Decl. Lesser ¶¶ 14–15.) Gutierrez attaches email correspondence showing defendant refusing to schedule another IME until the $900 is paid. (Opp. Exhs. 1–3.) Gutierrez argues that she never agreed to pay a late fee and Dr. Ludwig is not a party to this action..

The first issue is Gutierrez’s failure to timely appear at two previously-scheduled IMEs. A total sanction award of $1,600 against Gutierrez under C.C.P. §§ 2032.240 and 2032.410 is appropriate.

Second, PMA seeks to compel an IME. PMA’s declaration fails to show an adequate meet and confer on this issue; instead the correspondence between the parties show that PMA is the party refusing to reschedule the exam. A review of the opposition motion suggests a $400 sanction against PMA under C.C.P. § 2023.020 is reasonable.

IV. Ruling

Property Management is awarded $1,600 in discovery sanctions.

Gutierrez is awarded $400 in sanctions.

The parties are ordered to reschedule the IME to take place within the next 30 days.

Next dates: PMS 1/23/19; MSJ 2/19/19; FSC 3/18/19; Jury trial 3/25/19