Judge: Anne Hwang, Case: 21STCV46856, Date: 2023-09-29 Tentative Ruling

Case Number: 21STCV46856    Hearing Date: September 29, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            On December 23, 2021, Plaintiff Ana Tzintzun (“Plaintiff”) filed this action against Defendant City of Culver City, asserting causes of action for negligence and negligent hiring/ supervision. 

Defendant City of Culver City (“Defendant”) now moves to compel a physical examination to be conducted by board-certified orthopedist SangDo Park, M.D.  Defendant also requests monetary sanctions. Plaintiff opposes.

LEGAL STANDARD

“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.” (Code Civ. Proc., § 2032.220, subd. (a).)¿ 

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“ “If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with¿Section 2032.210), or by a mental examination, the party shall obtain leave of court.” (Code Civ. Proc., section 2032.310, subd. (a).) 

Where the examination is required pursuant to court order based on section 2032.310, the person to be examined may be required to travel to wherever the doctor is located. (Code Civ. Proc. § 2032.320(d).) However, pursuant to that section, where the examinee is required to travel more than 75 miles from her residence, the court’s order must be based on a finding of “good cause” and must be “conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.” (Code Civ. Proc. § 2032.320(e).) Notably, Code of Civil Procedure section 2032.220 does not contain a similar provision.

DISCUSSION

Neither party addresses the difference between section 2032.220, which permits one physical examination in a personal injury case without leave of court but which requires the examination to be within 75 miles, and section 2032.320, which permits the court to order the examinee to travel based on a finding of good cause if the moving party pays reasonable costs. Section 2032.220 does not contain a similar provision, suggesting that such examination must be within 75 miles of the plaintiff’s residence.

Even if the standard set forth in section 2032.320 properly applies here to this initial physical examination, Defendant has not established good cause for the order. For example, Defendant does not address why its expert cannot travel to Plaintiff for the examination. In its original motion, Defendant argued that it should not have to retain a doctor near Beaverton, Oregon, and then “be forced to bear the prohibitive costs” to have “said doctor appear at trial.” (Motion at pg. 4.) Defendant’s argument appears to be focused on the costs of travel, but section 2032.320 contemplates that the costs associated with an examination more than 75 miles away are borne by the moving party. In its reply, Defendant argued that it has the right to select an IME physician of its own choosing. Defendant provides no explanation for why Defendant could not have an expert of its choosing travel to Plaintiff. Defendant further argues there will be no prejudice to Plaintiff to appear for her examination in Los Angeles. Plaintiff responds that the travel time is lengthy compared with the likely examination time.

Defendant also argues that Plaintiff waived any objection to Defendant’s demand based on examination location. However, Defendant is bringing this motion pursuant to section 2032.310. As such, a party that desires to obtain discovery other than that described in section 2032.210 must obtain leave of court.

CONCLUSION AND ORDER

For all of these reasons, the Court denies Defendant’s motion to compel Plaintiff’s mental examination in Los Angeles. As such, the Court also denies Defendant’s motion for sanctions.

Defendant shall provide notice of the Court’s order and file a proof of service of such.