Motion for Leave of Court for Physical Examination (Judge Michelle Williams)

Case Number: BC600458??? Hearing Date: February 22, 2017??? Dept: 92

JORDAN STONE,
Plaintiff,

vs.

MIRIAM HARNIK, et al.,
Defendants.

CASE NO: BC600458

[TENTATIVE] ORDER GRANTING DEFENDANT?S UNOPPOSED MOTION FOR LEAVE OF COURT FOR PHYSICAL EXAMINATION

Defendant MIRIAM HARNIK (?Defendant?) moves the Court to compel a response to and compliance with Defendant?s demand for a physical examination of Plaintiff JORDAN STONE (?Plaintiff?).

In an action for personal injuries, any defendant may demand one physical examination of the plaintiff without the leave of court if the examination does not include any diagnostic testing or pain procedures and the examination is conducted within 75 miles of the plaintiff?s residence. (Code of Civ. Proc. ? 2032.220, subd. (a).) The defendant must serve a demand on the plaintiff and all other parties that have appeared in the case. (Code of Civ. Proc. ? 2032.220, subd. (b)?(d).) Within 20 days of service of the demand, the plaintiff must respond by a written statement that Plaintiff will comply with the demand as stated or as modified by the plaintiff or that plaintiff will refuse to comply. (Code of Civ. Proc. ? 2032.230.) If a plaintiff fails to timely respond to the demand, the plaintiff waives any objection to the demand. (Code of Civ. Proc. 2032.240, subd. (a).) Where a plaintiff refuses to comply, the defendant may move for an order compelling response and compliance with a demand for a physical examination.? (Code of Civ. Proc. 2032.240, subd. (b).)

As this is a personal injury action, Defendant is entitled to one physical examination of Plaintiff. On October 17, 2016, Defendant sent Plaintiff a demand for physical examination with Dr. Michael D. Landman in Tarzana, California on November 21, 2016. (Moving Papers, Exh. A.) After Plaintiff failed to appear for the examination, counsel for both parties met and conferred regarding Plaintiff?s absence. (Moving Papers, Exhs. B?E.) Ultimately, the parties? counsels agreed that Plaintiff would appear for a physical examination with Dr. Landman on January 4, 2017. (Moving Papers, Exh. D?E.) The demand for the physical examination was sent on December 13, 2016. (Moving Papers, Exh. F.) Plaintiff did not appear for the physical examination. (Birch Decl. ? 14.)

Since Plaintiff has failed to comply with two demands for a physical examination, Defendant?s motion is GRANTED. Plaintiff is ordered to respond to and comply with Defendant?s next noticed demand for physical examination.

Defendant also seeks sanctions in the amount of $2,460 for the cost and fees related to this motion and the missed appointments with Dr. Landman. (Forrester Decl. ? 8.)

The court shall impose a monetary sanction on any party who unsuccessfully makes or opposes a motion to compel response to and compliance with a demand for physical examination. (Code of Civ. Proc. ? 2032.240, subd. (c).)

As Plaintiff has not opposed this motion, Defendant?s request for sanctions is DENIED.

Defendant shall give notice of this order.