SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

On April 4, 2022, Defendant Sasan Salmi (“Defendant”) propounded a demand for a June 2, 2022 medical examination of Plaintiff LaTiffany Draper (“Plaintiff”).  (Motion, Exh. A.)  Due to Plaintiff’s unavailability, the examination was changed to October 3, 2022.  (Motion, Exh. B.)  Plaintiff served her objections and responses on July 11, 2022, including an agreement to the examination and demand for the medical examination report.  (Motion, Exh. C.)  Plaintiff appeared for medical examination on October 3, 2022, and Defendant provided a copy of the doctor’s report to Plaintiff on October 11, 2022.  (Motion, Seigler Decl. ¶¶ 5-6; Motion, Exh. D; Opposition, Exh. A.)  The parties dispute whether the report complies with Code of Civil Procedure section 2032.610.  (Motion pp. 5-6; Opposition p. 2; Reply p. 2.)  Defendant ignored Plaintiff’s attempts to meet and confer.  (Motion, Seigler Decl. ¶¶ 7-10; Motion, Exhs. E, F.)  Plaintiff filed this motion on December 6, 2022, seeking an order compelling Defendant to produce a medical report in compliance with Code of Civil Procedure section 2032.610 and to pay monetary sanctions.  Defendant filed a late opposition on December 28, 2022.  Plaintiff filed an objection and reply on December 29, 2022.  Because Plaintiff filed a reply addressing Defendant’s arguments, and there is no prejudice shown as a result of the late opposition, the Court considers the opposition. 

 

The parties agree that Defendant gave Plaintiff a copy of the doctor’s report, only disputing whether the report is code compliant.  Code of Civil Procedure section 2032.610(a) requires the report to contain “history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.”  Plaintiff does not categorically dispute that the report covers Plaintiff’s history and examination but asserts that it does not contain sufficient conclusions.  [Reply at 2:23-25 (“there are no actual opinions in the document that Defendant provided.  Defendants’ Opposition ignores the “conclusions” requirement of the Code. . . .”)]1   

 

In response, Defendant states that there are conclusions in the report; the doctor’s conclusions are set forth on pages 5 and 6 under the heading “Impression” and include opinions about Ms. Draper’s low back pain, right shoulder complaints and cervical spine.  This section states: 

 

Chief complaint is low back pain, but examination today was very benign. Although motion was limited and there was some midline tenderness, paraspinous muscles had no tenderness or spasm, straight-leg-raise and Lasègue tests were both unremarkable, and neurologic examination of the bilateral lower extremities demonstrated no focal deficit.  

 

Secondary complaint is the RIGHT SHOULDER with marked motion limitation despite RIGHT SHOULDER ARTHROSCOPY. The portals have healed with keloid which is non-tender. O’Brien test is mildly painful; and forward flexion arc is painful at end range but the patient states that her right shoulder surgery was “tremendously” helpful and that she is continuing to improve in her right shoulder symptoms to the present day.  

 

Although she did not specifically identify the cervical spine as an area of persistent discomfort from the subject accident, she did state that she did have some neck pain and pain that radiated in the right upper extremity as far down as the right elbow. However the patient was not allowed to discuss the subject accident beyond describing it as a rear-end motor vehicle accident on the freeway in which she was the passenger in a car driven by a _____ [sic] Bell.  

 

Thus, prior to rendering final opinions regarding the orthopedic injuries sustained by the patient in the subject accident of 11/26/19 (and their current residuals or lack thereof), I will perform a thorough review of available medical records and imaging studies. 

 

In support of its demand for a compliant report, Plaintiff cites Kennedy v. Superior Court (1998) 64 Cal.App.4th 674 (Kennedy).  In Kennedy, Plaintiff filed a slip and fall action against Defendant.  Defendant demanded a medical examination of Plaintiff, and Plaintiff requested the doctor’s report pursuant to Code of Civil Procedure § 2032.610.  Plaintiff was told that the doctor made no report.  The appellate court found, “Although there is a general reluctance to order parties to produce reports not in existence, the statute clearly requires that a party who submits to a physical examination is entitled to a report of that examination, which must contain certain specified information. The trade-off is clear: If one party to personal injury litigation is required by his or her opponent to submit to a medical examination, at the very least he or she is entitled to a report of the information obtained by the adversary in litigation.”  (Id. at 678.) 

 

While Kennedy describes a different factual situation, where no report was made or produced, the principle behind it applies here:  “the statute clearly requires that a party who submits to a physical examination is entitled to a report of that examination, which must contain certain specified information.”  (Id.)  Review of the doctor’s report shows that while he had certain “impressions,” he wanted to review medical records and imaging studies before reaching an opinion.  In other words, when the doctor chose to prepare the report, he had preliminary thoughts, but he did not commit to conclusions.  Because section 2032.610(a) requires the report to contain “conclusions of the examiner,” it is reasonable to require the doctor to provide more than his initial impressions but also opinions he ultimately reached.  “Plaintiff is entitled to a report of the information obtained by the adversary in litigation.”  (Kennedy, supra, at 678.)  Thus, Defendant is ordered to provide a report of the doctor’s conclusions within 30 days.  

 

Plaintiff seeks sanctions against Defendant.  Section 2023.040 of the Code of Civil Procedure provides, “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”  In Plaintiff’s Notice of Motion, Plaintiff requests, “pursuant to California Code of Civil Procedure [sections] 2023.010, 2023.030, and 2031.310, that Defendant pay sanctions in an amount not less than $2,060.00.”  However, in its Memorandum of Points and Authorities, Plaintiff fails to show how these statutes warrant the imposition in sanctions in this instance or why Defendant, as opposed to Defendant’s counsel, has engaged in misconduct that would warrant such sanctions.2  Further, the Court does not find that Defendant’s failure to provide a further report constitutes a misuse of discovery.  The request for sanctions is therefore denied.