Judge: Anne Hwang, Case: 22STCV23180, Date: 2024-09-09 Tentative Ruling

Case Number: 22STCV23180    Hearing Date: September 9, 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 July 18, 2022, Plaintiff Brian Nelson (“Plaintiff”) filed a complaint against Defendants Vyacheslav Borisov and Does 1 to 50 for negligence and strict liability resulting from a dog attack. On May 8, 2024, Plaintiff filed an amendment to the complaint, substituting Courtney Honda as Doe 1.

            Defendants Vyacheslav Borisov and Courtney Honda (“Defendants”) now move to compel Plaintiff to appear for a physical examination with Dr. David Clark Hay in Los Angeles.

            After filing this motion, Defendants filed a substitution of attorney on July 10, 2024, and are currently self-represented. Plaintiff opposes this motion. No reply has been filed.

On August 2, 2024, the Court held an informal discovery conference regarding this issue. It was not resolved. (Min. Order, 8/2/24.)   

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).)¿¿ 

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.

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).)

“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.  A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”¿ (Civ. Proc., § 2032.310, subds. (a)-(b).)¿

“If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: 

(1) The court determines that there is good cause for the travel involved. 

(2) The order is 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).)  

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”¿ (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [“the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary”].) A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)¿ And “[a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (Id. at p. 839.)¿¿¿ 

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿¿¿ 

MEET AND CONFER

The Declaration of Jonathan M. Beltram, then-counsel for Defendants, sets forth facts that he communicated with Plaintiff’s counsel to coordinate the subject medical examination. (Beltram Decl. ¶ 10-13.) Therefore, the meet and confer requirement is met.

DISCUSSION

Plaintiff has alleged physical injuries based on an alleged dog attack. Plaintiff is also anticipating $50,000 in expenses for plastic surgery to his right arm. (Beltram Decl. ¶ 7.)

On May 8, 2024, Defendants served a demand for a physical examination on Plaintiff set for June 13, 2024. (Beltram Decl. ¶ 4, Exh. B.) On May 20, 2024, Plaintiff served an objection on the basis that because he resided in Texas, and the examination was set for Los Angeles, it was over 75 miles away under Code of Civil Procedure section 2032.220. (Id., Exh. E.)

Defendants assert they offered to pay for Plaintiff’s reasonable travel expenses, but that Plaintiff refused. (Beltram Decl. ¶ 10-12.) Defendants do not want to incur the extra expenses of retaining a Texas-based examiner, citing extreme prejudice and undue hardship. (Motion, 6.)

In opposition, Plaintiff re-asserts the argument that because the examination is over 75-miles from his residence in Texas, there are no grounds to compel. Instead, Plaintiff asserts he has made himself available for examination within 75-miles of his residence in Spring, Texas.

No reply has been filed. Given that Defendants are now self-represented, they have not confirmed whether the offer to pay for reasonable travel expenses is still open. Furthermore, Defendants fail to set forth specific facts in the motion, showing how they would suffer extreme prejudice and undue hardship by retaining a Texas-based examiner. Therefore, they fail to set forth sufficient good cause for the travel under section 2032.320(e).

CONCLUSION AND ORDER

Accordingly, Defendants Motion to Compel Plaintiff to Submit to an Independent Medical Examination in California is DENIED.

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