This case was last updated from Los Angeles County Superior Courts on 11/28/2020 at 10:37:00 (UTC).

SAMANTHA HOFFENS VS RACHEL MIZRAHI ET AL

Case Summary

On 10/23/2017 SAMANTHA HOFFENS filed a Personal Injury - Other Personal Injury lawsuit against RACHEL MIZRAHI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and DANIEL M. CROWLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0640

  • Filing Date:

    10/23/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CHRISTOPHER K. LUI

DANIEL M. CROWLEY

 

Party Details

Plaintiff and Petitioner

HOFFENS SAMANTHA

Defendants and Respondents

MIZHAI RACHEL

COHEN LEA

MIZRAHI HAIM

DOES 1 TO 25

Not Classified By Court

MEDFACTOR INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

YAGHOUBTIL FARID

Defendant and Respondent Attorneys

WESIERSKI & ZUREK LLP

WESIERSKI CHRISTOPHER P. ESQ.

WESIERSKI CHRISTOPHER PAUL

 

Court Documents

Order - [PROPOSED] ORDER FOR DEFENDANT'S EVIDENTIARY OBJECTIONS TO DECLARATION OF THOMAS HOPKINS, PH. D, M.D.

8/19/2020: Order - [PROPOSED] ORDER FOR DEFENDANT'S EVIDENTIARY OBJECTIONS TO DECLARATION OF THOMAS HOPKINS, PH. D, M.D.

Reply - REPLY TO OPPOSITION TO MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

5/26/2020: Reply - REPLY TO OPPOSITION TO MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS RACHEL MIZRAHI AND HAIM MIZRAHI'S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA AND REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF POINTS AND AU

5/19/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS RACHEL MIZRAHI AND HAIM MIZRAHI'S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA AND REQUEST FOR MONETARY SANCTIONS; MEMORANDUM OF POINTS AND AU

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/21/2020

4/21/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/21/2020

Minute Order - MINUTE ORDER (COURT ORDER)

4/21/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Opposition - OPPOSITION OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR SHORTEN TIME FOR HEARING DEFENDANTS' MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA ON DR. HOPKINS, ORDER CONTINUING TR

2/26/2020: Opposition - OPPOSITION OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR SHORTEN TIME FOR HEARING DEFENDANTS' MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA ON DR. HOPKINS, ORDER CONTINUING TR

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE; DEFENDANT'S EX PARTE APPLICATION TO ...)

2/26/2020: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE; DEFENDANT'S EX PARTE APPLICATION TO ...)

Notice of Ruling

12/9/2019: Notice of Ruling

Minute Order - MINUTE ORDER (MOTION FOR PROTECTIVE ORDER FILED BY DEFENDANTS RACHEL MIZRAH...)

12/4/2019: Minute Order - MINUTE ORDER (MOTION FOR PROTECTIVE ORDER FILED BY DEFENDANTS RACHEL MIZRAH...)

Reply - REPLY TO OPPOSITION TO MOTION FOR A PROTECTIVE ORDER AND/OR TO COMPEL COMPLETION OF IME AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $3,750.00; MEMORANDUM OF POINTS AND AUTHORITIES

11/25/2019: Reply - REPLY TO OPPOSITION TO MOTION FOR A PROTECTIVE ORDER AND/OR TO COMPEL COMPLETION OF IME AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $3,750.00; MEMORANDUM OF POINTS AND AUTHORITIES

Motion for Protective Order

10/25/2019: Motion for Protective Order

Notice of Ruling

9/12/2019: Notice of Ruling

[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

3/14/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

Declaration - Declaration of Curtis P. Holdsworth

12/31/2018: Declaration - Declaration of Curtis P. Holdsworth

Declaration - Declaration of Brian W. Easton

12/31/2018: Declaration - Declaration of Brian W. Easton

PROOF OF SERVICE SUMMONS -

1/10/2018: PROOF OF SERVICE SUMMONS -

ANSWER OF RACHEL MIZRAHI AND HAIM MIZRAHI TO COMPLAINT

1/18/2018: ANSWER OF RACHEL MIZRAHI AND HAIM MIZRAHI TO COMPLAINT

SUMMONS -

10/23/2017: SUMMONS -

37 More Documents Available

 

Docket Entries

  • 03/01/2021
  • Hearing03/01/2021 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 10/23/2020
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Order to Show Cause Re: Dismissal - Held

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  • 10/23/2020
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal)); Filed by Clerk

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  • 10/23/2020
  • DocketCertificate of Mailing for ((Order to Show Cause Re: Dismissal) of 10/23/2020); Filed by Clerk

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  • 08/26/2020
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Compel (compliance with deposition subpoena) - Held - Motion Denied

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  • 08/26/2020
  • DocketMinute Order ( (Defendants Haim Mizrahi and Rachel Mizrahi's Motion to Compel...)); Filed by Clerk

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  • 08/20/2020
  • DocketNotice (NOTICE REGARDING CORRECT DEPARTMENT FOR HEARING FOR DEFENDANTS RACHEL MIZRAHI AND HAIM MIZRAHI MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA); Filed by RACHEL MIZHAI (Defendant); HAIM MIZRAHI (Defendant)

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  • 08/19/2020
  • DocketEvidentiary Objections to Declaration of Thomas Hopkins, PH.D, M.D; Filed by RACHEL MIZHAI (Defendant); HAIM MIZRAHI (Defendant)

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  • 08/19/2020
  • Docket[Proposed] Order for Defendant's Evidentiary Objections to Declaration of Thomas Hopkins, PH. D, M.D.; Filed by RACHEL MIZHAI (Defendant); HAIM MIZRAHI (Defendant)

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  • 07/21/2020
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Advanced and Vacated

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55 More Docket Entries
  • 01/18/2018
  • DocketANSWER OF RACHEL MIZRAHI AND HAIM MIZRAHI TO COMPLAINT

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  • 01/18/2018
  • DocketDEMAND FOR JURY TRIAL

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  • 01/10/2018
  • DocketProof of Service (not Summons and Complaint); Filed by SAMANTHA HOFFENS (Plaintiff)

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  • 01/10/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 01/10/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 01/10/2018
  • DocketProof of Service (not Summons and Complaint); Filed by SAMANTHA HOFFENS (Plaintiff)

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  • 12/27/2017
  • DocketDemurrer; Filed by Defendant/Respondent

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  • 10/23/2017
  • DocketComplaint; Filed by SAMANTHA HOFFENS (Plaintiff)

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  • 10/23/2017
  • DocketCOMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETC

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  • 10/23/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC680640    Hearing Date: August 26, 2020    Dept: 28

Motion to Compel Compliance with Subpoena

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

BACKGROUND

On October 23, 2017, Plaintiff Samantha Hoffens (“Plaintiff”) filed a complaint against Defendants Rachel Mizrahi, Haim Mizrahi, and Lea Cohen.  Plaintiff alleges negligence and premises liability for a slip-and-fall that occurred on February 13, 2017.

On March 17, 2020, Defendants Haim Mizrahi and Rachel Mizrahi filed a motion to compel compliance with a deposition subpoena pursuant to California Code of Civil Procedure section 1987.1.

On April 21, 2020, the Court continued the hearing on Defendants Haim Mizrahi’s and Rachel Mizrahi’s motion to August 26, 2020.

A trial setting conference is scheduled for March 1, 2021.

PARTIES REQUESTS

Defendants Haim Mizrahi and Rachel Mizrahi ask the Court to compel Dr. Thomas Hopkins to serve documents that are responsive to a subpoena issued in October and December of 2019 and January of 2020.

Defendants Haim Mizrahi and Rachel Mizrahi also ask the Court to impose $1,860.00 in monetary sanctions.

OBJECTIONS

Defendants Haim Mizrahi and Rachel Mizrahi objection numbers one through five to Dr. Thomas Hopkins’ declaration are OVERRULED.

LEGAL STANDARD

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.  In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.”  (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)

Under California Code of Civil Procedure section 2023.030, subdivision (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Under California Code of Civil Procedure section 2023.010, examples of the misuse of the discovery process include, “(d) Failing to respond or to submit to an authorized method of discovery.”

DISCUSSION

On October 28, 2019, Defendants Haim Mizrahi and Rachel Mizrahi served a deposition notice on Dr. Thomas Hopkins by U.S. mail.  (Rodriguez Decl., 6, Exh. A.)  Dr. Hopkins requested the deposition be continued to January 7, 2020 and Defendants Haim Mizrahi and Rachel Mizrahi agreed to the continuance.  (Rodriguez Decl., 7.)  On December 23, 2019, Defendants Haim Mizrahi and Rachel Mizrahi served an amended deposition notice on Dr. Thomas Hopkins by U.S. mail.  (Rodriguez Decl., 9, Exh. B.)  Dr. Hopkins requested the deposition be continued to January 28, 2020 and Defendants Haim Mizrahi and Rachel Mizrahi agreed to the continuance.  (Rodriguez Decl., 10.)  On January 13, 2020, Defendants Haim Mizrahi and Rachel Mizrahi served another amended deposition notice on Dr. Hopkins by U.S. Mail.  (Rodriguez Decl., 12, Exh. C.)  On January 28, 2020, Dr. Hopkins appeared for his deposition, but did not produce any documents.  (Rodriguez Decl., 13.)  Defendants Haim Mizrahi and Rachel Mizrahi asked for the outstanding documents three times to no avail.  (Rodriguez Decl., ¶¶ 15-19, Exh. D-E.)

Plaintiff argues the motion is untimely.  (Opposition, pp. 5:1-6:3.)  This is because Defendants Haim Mizrahi and Rachel Mizrahi did not ask for the documents pursuant to the subpoena either before, during, or after the deposition up until an ex parte hearing on February 26, 2020.  (Opposition, p. 5:18-5:21; Fradkin Decl., 6.)  At the February 26, 2020 hearing, the Court continued trial from March 9, 2020 to July 21, 2020.  (2/26/20 Minute Order.)  The Court did not state whether discovery deadlines were continued.  (See ibid.)  Since the trial continuance, the parties have conducted expert and percipient discovery.  (Reply, p. 6:24-6:26.)  Most salient, Plaintiff herself has served a deposition subpoena on a non-party witness in April of 2020.  (Kim Decl., pp. 3-4, Exh. F.)

The Court finds the motion is timely.  The Court did not clarify whether discovery cut-off dates were continued in the Court’s February 26, 2020 minute order.  The Court, however, did imply such a continuance in stating Defendants Haim Mizrahi and Rachel Mizrahi may file the motion to compel at bar.  Importantly, the parties, including Plaintiff have been acting as if the discovery cut-off deadlines were continued with the new trial date.  Plaintiff’s gamesmanship in using the discovery act as a shield and a sword is what the Legislature intended to take out of trial preparation.  (See Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.)  As such, the Court finds Defendants Haim Mizrahi’s and Rachel Mizrahi’s instant motion is timely by virtue of Plaintiff’s engagement in the discovery process.

Plaintiff argues the subpoenas seek documents that are privileged, violate HIPAA, and are irrelevant.  (Opposition, pp. 6:4-7:23.)  The Court finds Dr. Hopkins waived his objections.  (See Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1289-1290.)  Insofar as the deposition subpoenas seek privileged information of patients other than Plaintiff, Dr. Hopkins shall serve a privilege log and/or redact personal information of other patients.

Dr. Hopkins submits a declaration that states the following.  Dr. Hopkins produced his Curriculum Vitae, billing statements for Plaintiff, and entire file for Plaintiff.  (Hopkins Decl., ¶ 5.)  Dr. Hopkins does not maintain a data bank which identifies a list of which procedures have been performed on which patients.  (Hopkins Decl., ¶ 7.)  Dr. Hopkins also does not maintain a data bank that identifies what payments were made by those patients for which he performed surgical procedures that were similar to the procedure performed on Plaintiff.  (Ibid.Dr. Hopkins is a sole practitioner with only two employees.  (Hopkins Decl., ¶ 8.)  Dr. Hopkins would have to review all patient files on paper to obtain the requested information because he does not use electronic charts.  (Ibid.Dr. Hopkins has evaluated about 2,000 new patients since January 2016 to the present day.  (Ibid.) in excess of 50-60 minutes per patient chart to obtain the information sought.  (Hopkins Decl., ¶¶ 8-10.)

The Court finds the burden on Dr. Hopkins outweighs the need for Defendants Haim Mizrahi and Rachel Mizrahi to obtain the requested information through the subpoenas issued to Dr. Hopkins.  (See Allen v. Superior Court (1984) 151 Cal.App.3d 447, 452.) In Allen, a party issued a subpoena to a defense medical expert seeking a variety of documents that did not pertain to the plaintiff.  (See id. at p. 449.) Ibid.)  The Court in Allen found the plaintiff made no showing that “the information sought or substantially equivalent information could not be obtained through other means, such as by conducting a deposition without production of the records.”  (Id. at p. 453.)  See, also, Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216.   emand.

Sanctions are not properly imposed because the motion is not properly granted.

CONCLUSION

The motion is DENIED.

Defendants Haim Mizrahi and Rachel Mizrahi are ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: BC680640    Hearing Date: December 04, 2019    Dept: 4A

Motion to Compel Attendance at a Physical Examination; Motion for Protective Order

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

BACKGROUND

On October 23, 2017, Plaintiff Samantha Hoffens (“Plaintiff”) filed a complaint against Defendants Rachel Mizrahi, Haim Mizrahi, and Lea Cohen alleging negligence and premises liability for a slip-and-fall that occurred on February 13, 2017.

On October 25, 2019, Defendants Rachel Mizrahi and Haim Mizrahi filed a motion to compel Plaintiff’s attendance at a physical examination pursuant to California Code of Civil Procedure section 2032.250 and a motion for a protective order pursuant to California Code of Civil Procedure section 2032.510.

Trial is set for March 9, 2020.

PARTY’S REQUESTS

Defendants Rachel Mizrahi and Haim Mizrahi (“Moving Defendants”) ask the Court to compel Plaintiff to appear for a physical examination based on Plaintiff’s failure to submit to a physical examination on May 22, 2019.

Moving Defendants also ask for a protective order prohibiting any observer to Plaintiff’s physical examination from participating in the examination or interfering with Plaintiff’s answering of questions regarding the mechanics of the incident that forms the basis for this action.

Moving Defendants further ask the Court to impose $3,750 in monetary sanctions against Plaintiff and/or her counsel to cover the expenses involved in bringing this motion.

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. § 2032.220, subd. (a).) 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).)

An attorney’s observer of a physical examination may suspend the examination to enable the examined party to move for a protective order if the examiner abuses the examinee or engages in unauthorized procedures and diagnostic tests “in the judgment of the observer.”  (Code Civ. Proc. § 2032.510, subd. (a)-(b), (d)-(e).)

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 May 22, 2019, Dr. Charles D. Rosen attempted to conduct a physical examination of Plaintiff.  (Kim Decl., ¶ 8.)  Plaintiff’s observer objected to Dr. Rosen’s questioning of how Plaintiff sustained her injuries.  (Heard Decl., 3, Exh. 1.)

The Court finds the motion is properly granted.  Dr. Rosen was seeking to obtain Plaintiff’s recounting of the events that led up to Plaintiff’s fall.  As Moving Defendants correctly point out in reply, Dr. Rosen is required to produce a written report setting out the nature and extent of Plaintiff’s injuries for which she claims damages in this action.  (See Code Civ. Proc. § 2032.610, subd. (a)(1).)  The Court credits Dr. Rosen’s assessment that questions about the mechanics of a fall like the one suffered by Plaintiff are relevant to an orthopedic examination where the examiner must determine not only the cause of the injury but the likely scope and nature of injuries that arose from the injury-causing event that is described by the patient.  Dr. Rosen’s questions, including his inquiry, “so your legs kind of went out from under you?,” fall squarely within the scope of proper questioning about the pathology of an orthopedic injury like the one alleged by Plaintiff here.  (See Heard Decl., ¶ 3, Exh. 1.) The alleged cause of Plaintiff’s injuries is relevant to Dr. Rosen because the scope of potential injuries that may result from falling down stairs could be different from being struck by a vehicle or some other accident.

Further, Plaintiff has not moved for a protective order.  The Code provides for such a suspension where does so to allow for a motion for a protective order.  Plaintiff’s characterization of the examination as being suspended by Dr. Rosen is inaccurate.  In truth, the examination was suspended by Plaintiff’s interference with the regular pace of the examination.  According to the record before the Court, Plaintiff’s observer stated “[t]he plaintiff will not answer unauthorized questions” when faced with simple inquiries about how the fall occurred.  (See Heard Decl., ¶ 3, Exh. 1.)  Dr. Rosen terminated the exam only after realizing he could not obtain a response about how the injuries occurred.  Thus, Dr. Rosen’s termination was caused by the observers refusal to allow Plaintiff to answer basic questions.

For these reasons, the Court finds it should grant the motions to compel an unobstructed medical examination and for a protective order so as to permit the causation questions posed by Defendant’s medical examiner and to bar any interference by Plaintiff’s observer. 

The Court also finds that Defendant is entitled to monetary sanctions in connection with its discovery motions.  The Court finds that Plaintiff has not acted with substantial justification and that there are no circumstances that would render the imposition of sanctions to be unjust.

Defendant requests $3,750 in sanctions, consisting of 2 hours to review objections and prepare meet and confer correspondence, 5 hours in preparing the moving papers, 3 hours in reviewing the opposition and preparing the reply, and 4 hours in appearing at the hearing at a rate of $235 an hour, plus a $60 filing fee and a $400 cancellation fee(Kim Decl., ¶ 19.)  The Court finds this to be an unreasonable amount of sanctions.  The meeting and conferring could have taken much less time, the motion is straight-forward, and the hearing will not take 4 hours to complete.  Rather, the Court finds $1,165 ($235/hr. x 3 hrs. plus one $60 filing fee plus one $400 termination fee) to be a reasonable amount of sanctions to be imposed against Plaintiff and Plaintiff’s counsel of record for their abuse of the discovery process.

Therefore, the motions are GRANTED.

Plaintiff is ordered to appear for medical examination within 30 days of this ruling, or on a date mutually agreeable to the parties.  This medical examination is to be conducted pursuant to the terms in agreed upon between the parties as referenced in paragraph 7 of Mary H. Kim’s declaration in support of the motion.

The Court issues a protective order prohibiting Plaintiff’s observer from suspending the examination because the examining doctor is questioning Plaintiff about how her injuries were sustained.

Plaintiff and Plaintiff’s counsel of record are ordered to pay Moving Defendants $1,165, jointly and severally, within 30 days of the date of this ruling.

Moving Defendants are ordered to give notice of this ruling.