Judge: Anne Hwang, Case: 22STCV07689, Date: 2024-01-08 Tentative Ruling

Case Number: 22STCV07689    Hearing Date: February 7, 2024    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 March 3, 2022, Plaintiff Jamil Johnson Hardwick (Plaintiff) filed this action against Defendant Helia Zandipour (Defendant) for negligence involving a motor vehicle accident. Defendant filed her answer on August 18, 2022.  

On May 18, 2023, pursuant to a stipulation, the Court continued trial and all related dates from August 31, 2023 to February 27, 2024.

            On January 4, 2024, Defendant’s ex parte application continuing trial to May 3, 2024, was granted. All Discovery and Pre-Trial Motion cut-off dates remain associated with the trial date of 02/27/2024. (Min. Order, 1/4/24.)

Defendant now moves to reopen discovery for the limited purpose of compelling Plaintiff’s neurological medical examination. Defendant filed this motion on January 11, 2024. Plaintiff opposes.

LEGAL STANDARD

Reopen Discovery

“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.¿ This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”¿ (Code Civ. Proc., section 2024.050, subd. (a).)¿ 

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“In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery.¿ (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿ (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿ (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”¿ (Code Civ. Proc., section 2024.050, subd. (b)(1)-(4).)¿¿¿ 

“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 extend or to reopen discovery, 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.”¿ (Code Civ. Proc., section 2024.050, subd. (c).)¿¿¿ 

Compel Neurological Examination

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).)¿¿The demand must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. (Code Civ. Proc. § 2032.220(c).) The examination must also be scheduled for a date at least 30 days from service of the demand. (Id. § 2032.220(d).) ¿ 

Code of Civil Procedure section 2032.250 provides that, when a plaintiff fails to respond to a demand, or refuses to submit to the physical examination, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. The motion must be accompanied by a meet and confer declaration.¿ 

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The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel 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. (Code Civ. Proc. § 2032.250 (b).)¿ 

MEET AND CONFER

The Declaration of Emily Zinn states that counsel for the parties conferred in December 2023 and January 2024 regarding the examination but that Plaintiff refused to extend discovery. (Zinn Decl. ¶ 17, 21, 22.) Therefore, it appears Defendant attempted to resolve the matter in good faith.

DISCUSSION

Reopen Discovery

Defendant seeks to reopen discovery in order to compel Plaintiff’s medical examination with defense neurosurgeon Dr. Srinath Samudrala, on February 20, 2024. Defendant initially noticed Plaintiff’s examination with Dr. Samudrala on November 21, 2023, set for January 31, 2024. (Zinn Decl. ¶ 15, Exh. L.) Plaintiff objected because the examination was scheduled two days after the fact discovery cutoff. (Id. ¶ 16, Exh. M.)

In his November 2022 deposition, Plaintiff testified he did not pursue pain injections due to the cost, but that if his pain worsened in the future, he could consider resuming pain treatment with Dr. Greg Khounghanian. (Zinn Decl. ¶ 6, Exh. D.) The discovery produced in March 2023 showed that Plaintiff did not receive significant spine treatment in 2022 or 2023. (Id. ¶ 10–11, Exh. H, I.) In August 2023, Defendant learned that Plaintiff returned to his pain treatment doctor and the parties attended an unsuccessful mediation. (Id. ¶ 12–13.) In December 2023, Defendant argues that Plaintiff disclosed for the first time that he incurred $20,000 in pain injection treatments and obtained a surgical recommendation. Defendant argues that had the spinal treatment been disclosed earlier, she would have sought an examination sooner.  

In opposition, Plaintiff argues that Defendant could have sought this examination after taking Plaintiff’s deposition in November 2022, and learning that he was still experiencing pain.

However, given that Plaintiff’s discovery in March 2023 did not indicate he was seeking active treatment for his pain, and that new treatment was revealed in August and December 2023, the Court finds that Defendant acted diligently. Additionally, since trial is scheduled for May 3, 2024, it does not appear that the trial date will be affected by allowing the physical examination on February 20, 2024. Similarly, Plaintiff fails to demonstrate how he will be prejudiced by the examination, considering the current trial date.  Therefore, the motion to reopen discovery is granted for the limited purpose of taking Plaintiff’s physical examination.

Compel IME

With discovery opened, the Court now turns to Defendant’s motion to compel Plaintiff’s neurological medical examination (“IME”). (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568, 1588 [requiring a trial court to hear a motion for leave to reopen discovery under section 2024.050, or consider its factors, before hearing a discovery motion past the deadlines in Code of Civil Procedure section 2024.020.)  

The facts outlined above are relevant to this motion, specifically that Defendant noticed Plaintiff’s physical examination on November 21, 2023, set for January 31, 2023. (Zinn Decl. ¶ 15, Exh. L.)

Plaintiff has claimed injuries to his head, neck, back, right knee, and left knee. (Zinn Decl. ¶ 3, Exh. A.)  According to Plaintiff’s objection to the original demand, Plaintiff agrees this examination constitutes the one physical demand that Defendant is entitled to under section 2032.220. (See Zinn Decl., Exh. M.) However, Plaintiff objected that the examination was scheduled after the discovery cutoff date. In opposition, Plaintiff argues that Defendant fails to show the examination is necessary. However, Plaintiff fails to object to the amended request for examination here: set for February 20, 2024 with Dr. Srinath Samudrala at 1:00pm. Based on Defendant’s Separate Statement, it does not appear the examination will include a diagnostic test or procedure that is painful, protracted, or intrusive. Plaintiff also does not argue that Dr. Samudrala’s office is over 75 miles from his residence. Therefore, because Defendant previously served a demand for a medical examination, the motion to compel Plaintiff’s medical examination on February 20, 2024 at 1:00pm with Dr. Srinath Samudrala, is granted.

Since Defendant has not requested monetary sanctions, the Court declines to award sanctions.

CONCLUSION AND ORDER

Accordingly, Defendant Helia Zandipour’s motion to reopen discovery is GRANTED.

Defendant Helia Zandipour’s motion to compel Plaintiff’s independent medical examination is GRANTED. Plaintiff is ordered to appear for examination on February 20, 2024 at 1:00 p.m.

Defendant to provide notice and file a proof of service of such.