DANIEL DANGOOR ET AL VS MOLLY SCORE ET AL

Motion to Compel Plaintiff Mona Ahdoot to Submit to a Medical Examination

Having considered the moving, opposition, and reply papers, the Court rules as follows.

BACKGROUND

On August 22, 2017, Plaintiffs Daniel Dangoor (“Dangoor”) and Mona Ahdoot (“Ahdoot”) (collectively “Plaintiffs”) filed a complaint against Defendants Molly Score and Jeffrey Score (collectively “Defendants”) for motor vehicle, general negligence, and loss of consortium arising from a motor vehicle accident that occurred on March 16, 2016.

On October 1, 2019, Defendants filed the instant motion to compel Plaintiff Mona Ahdoot to submit to a medical examination.  Plaintiff Ahdoot filed an opposition on October 18, 2019.  Defendants filed a reply on October 24, 2019.

Trial is set for March 12, 2020.

PARTY’S REQUESTS

Defendants request a court order compelling Plaintiff Ahdoot to submit to a medical examination with orthopedic surgeon Steven Nagelberg, M.D. .

LEGAL STANDARD

California Code of Civil Procedure section 2032.220, subdivision (a) states: “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.”

California Code of Civil procedure section 2032.240, subdivision (a) states: “If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely responses to it, that plaintiff waives any objection to the demand.”  Subdivision (b) of that same section empowers a defendant to move for an order compelling a response and compliance with a demand for a physical examination.

California Code of Civil Procedure section 2032.240, subdivision (c) states: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

California Rules of Court, rule 3.1348, subdivision (a) 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.”

DISCUSSION

On March 15, 2019, Defendants served a Demand for Orthopedic Independent Medical Examinations with orthopedic surgeon Steven Nagelberg, M.D., noticing the examinations for June 11, 2019 at Dr. Nagelberg’s office.  (Renaud Decl., ¶ 3, Ex. A.)  Plaintiffs neither objected nor provided any response to the demand.  (Id., ¶ 4.)  On June 10, 2019, Plaintiffs’ counsel contacted Defendants’ counsel and advised that, due to a medical issue, neither Plaintiff would be appearing for their medical examinations.  (Id., ¶ 5.)  Defendants incurred late cancellation fees of $495 for each Plaintiff because the examinations were cancelled only one day before the scheduled date.  (Id.)  

On July 31, 2019, Defendants served a second Demand for Orthopedic Independent Medical Examinations with Steven Nagelberg, M.D., noticing the examinations for September 24, 2019.  (Id., ¶ 6, Ex. B.)  Plaintiffs neither objected nor provided any responses to the demand.  (Id., ¶ 7.)

On September 23, 2019, Plaintiffs’ counsel contacted Dr. Nagelberg’s office directly to inform him that both Plaintiffs would appear the following day for their scheduled examinations, but that they would not arrive until approximately 11:00 a.m. due to scheduling conflicts.  (Id., ¶ 8.)  Counsel informed Dr. Nagelberg that both Plaintiffs “‘have cleared the rest of their day for these evals.’”  (Id., ¶ 8, Ex. C.) Nagelberg’s office notified Defendants’ counsel of the time change and that Dr. Nagelberg was unable to see both Plaintiffs at 11:00 a.m. due to his full schedule.  (Id., ¶ 9.)  

Defendants’ counsel’s office immediately contacted Plaintiffs’ counsel to inform him that any objections to the examinations have been waived and Dr. Nagelberg could only see Plaintiffs at their scheduled appointment times of 10:00 a.m. and 12:00 p.m.  (Id., ¶ 9, Ex. D.) Id.) Dangoor appeared for his scheduled examination on September 24, 2019, Plaintiff Ahdoot failed to appear for hers.  (Id., ¶ 10.)  A “No Show Fee” of $495.00 was imposed by Dr. Nagelberg’s office.  (Id., ¶ 10.)

In opposition, Plaintiff Ahdoot argues that Defendants failed to meet and confer regarding the issues presented in this motion or to schedule an Informal Discovery Conference prior to filing this motion.  Plaintiff’s counsel asserts that, despite Defendants’ counsel’s contention, he personally phoned Plaintiff’s counsel at least one week before the scheduled medical examinations and told Defendants’ counsel’s secretary that Plaintiffs would have to reschedule due to issues with respect to Plaintiff Ahdoot’s pregnancy.

While it is unclear whether Plaintiffs cancelled their June 11, 2019 examinations the day before or one week before, the Court finds that the motion should be granted.  Defendants properly served the notices for Plaintiff Ahdoot’s examination twice, and Plaintiff Ahdoot failed to appear both times.  

Plaintiff asserts that she was unable to appear both times due to medical issues that arose during her pregnancy.  But Plaintiff fails to provide any evidence of these medical issues.  Additionally, the second medical examination was scheduled for September 24, 2019, approximately four months after Plaintiff gave birth.  While it is possible that Plaintiff still had medical issues from delivering her baby, Plaintiff fails to provide an adequate explanation of any pregnancy-related issues that would have prevented her attendance at this examination.  

Plaintiff also claims that she told Dr. Nagelberg that she had to arrive later than expected on September 24, 2019 due to an unexpected emergency but fails to sufficiently explain what that emergency was.  This is unreasonable, especially when Plaintiffs’ counsel had indicated the day before that they would both arrive at 11:00 a.m., had cleared their schedules for the rest of the day, and Ahdoot’s examination , not an unexpected emergency.  (Id.)  If there was a scheduling conflict, Plaintiffs were not acting reasonably since they had known about the examinations

Plaintiff’s arguments that there was no IDC set and that Defendants failed to adequately meet and confer are unavailing.  As this is a motion to compel Plaintiff to submit to a defense examination, no IDC was required.  Additionally, the Court finds that Defendants sufficiently met and conferred prior to filing this motion.  While Defendants could have filed this motion after the first time Plaintiffs failed to appear for their examinations, Defendants accommodated Plaintiffs by rescheduling the examinations instead.  By not bringing this motion until Plaintiff Ahdoot failed to appear for a second time, Defendants made a good faith effort to informally resolve the issue before bringing the motion.

The Court finds that sanctions are warranted in this case.  Defendants’ request for $3,155 in monetary sanctions consists of $1,610 for attorney’s fees (3 hours for preparing the motion and 4 hours for attending the hearing at $230/hr), $1,485 for three late cancellation and “No Show Fees”, and $60 for filing fees. The Court finds that it is reasonable to require Plaintiff Ahdoot to pay the two cancellation fees totaling $990 and the $60 filing fee.  As to the requested attorneys’ fees, the Court finds that the amount of attorney’s fees sought is excessive for drafting this relatively simple motion.  Therefore, the Court awards monetary sanctions in an amount of $2,200 (5 hours for preparing the motion and attending the hearing at $230/hr, $990 for two late cancellation and “No Show Fees”, and $60 for filing fees).

Accordingly, the motion is GRANTED.

Plaintiff Ahdoot is ordered to appear for examination with Steven Nagelberg, M.D. on January 7, 2020 at 9:00 a.m.

Plaintiff Ahdoot is ordered to pay Defendants $2,200 in monetary sanctions within 30 days of this order.

Defendants are ordered to give notice of this ruling.