Judge: Cherol J. Nellon, Case: 19STCV25169, Date: 2023-04-05 Tentative Ruling
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Case Number: 19STCV25169 Hearing Date: April 5, 2023 Dept: 28
Defendants
Angel Barrera and Shapour Raziour’s Motion to Compel Plaintiff Latrice
Franklin’s Independent Medical Exam
Having considered the moving,
opposing and reply papers, the Court rules as follows.
BACKGROUND
On
July 17, 2019, Plaintiffs Michaela Reed (“Reed”) and Latrice Franklin
(“Franklin”) filed this action against Defendants Angel Barrera (“Barrera”) and
Shapour Raziour (“Raziour”) for negligence.
On
July 15, 2021, Defendants filed an answer.
On
March 13, 2023, Defendants filed a Motion to Compel Plaintiff Latrice Franklin’s IMEs to be
heard on April 5, 2023. On March 22, 2023, Plaintiffs filed an opposition. On
March 29, 2023, Defendants filed a reply.
Trial
is currently scheduled for July 7, 2023.
PARTY’S REQUESTS
Defendants request the Court order Franklin
to attend an IME with neurologist Dr. Edwin Amos III, on April 7, 2023, at 9:00
a.m., at 2021 Santa Monica Blvd., Suite 525E, Santa Monica, CA 90404.
Plaintiffs request the Court deny
the motion.
LEGAL STANDARD
A
defendant may demand one physical examination of the plaintiff in applicable
personal injury cases, so long as the examination is not painful, protracted or intrusive and
within 75 miles of the examinee’s place of residence. Code of Civil Procedure §
2032.220. Within 20 days of being served with the demand, the plaintiff served
will respond either with intent to comply or refuse, and if the latter, provide
reasons for the refusal. CCP § 2032.230.
Code
of Civil Procedure §2032.310 (a) requires a party to obtain leave of court if
it wishes to obtain discovery by an additional physical exam or any mental
exam. Subdivision (b) provides that a motion 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.” Such a motion may only be granted on good
cause shown. (CCP §2032.320(a).)
California
Code of Civil Procedure § 2023.030(a) provides that “[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.” According to CCP §2023.010(d), misuse of the discovery process
includes “failing to respond or to submit to an authorized method of
discovery.”
DISCUSSION
Franklin
did not identify any neurological injuries in her discovery responses. At
Franklin’s deposition, she stated that a speaker hit her on the head as a
result of the subject motor vehicle accident. Plaintiffs also designated
neurologist Dr. Jonathan Eskenazi on February 27, 2023. Although Plaintiffs did
not identify neurological injuries, by designating a neurologist as an expert, Franklin
has put potential neurological injuries at issue. There is good cause to grant
the motion, as otherwise Defendants will be unable to properly prepare for
trial.
Defendants
outlined the time, place, and identity for the exam. Defendants stated that
Amos will examine Plaintiff visually, palpate Plaintiff in order to determine
reflexes and motor function and will ask questions regarding her history with
neurological injuries.
Plaintiffs
request the Court deny the motion, first on the basis that Franklin does not
live in Los Angeles; the subject IME is allegedly greater than 75 miles from
Franklin’s residence. Defendants either may schedule an IME within 75 miles of Franklin
or may provide reasonable travel and accommodation fees for Franklin to attend
an IME in Los Angeles.
Plaintiffs
also argue that the IME was noticed for outside the discovery deadline; at the
time of filing, trial was scheduled for April 5, 2023. However, the Court
continued the trial date, specifically noting “discovery and law and motion
remain cut-off, but for the potential physical examination of Plaintiff.”
Therefore, the motion and IME is not subject to the discovery deadline.
Plaintiffs
finally argue that Franklin has already attended a former IME with Dr. Stuart
Gold. However, there is no indication that Dr. Gold is a neurologist or
equipped to perform such an exam. There is no indication that the exams are
unduly cumulative, and thus should not be a barrier to Amos’s exam.
Based
on the above, the Court grants the motion.
CONCLUSION
Defendants
Angel Barrera and Shapour Raziour’s Motion to Compel Plaintiff Latrice Franklin’s Independent Medical Exam is
GRANTED. Franklin is ordered to appear for an IME with Dr. Edwin Amos III
within 30 days of the hearing on the motion.
Parties are ordered to meet and
confer to confirm Franklin’s current address. Should Defendants wish to take
Franklin’s IME outside of the 75-mile radius from her current address,
Defendant will provide reasonable coverage for traveling and accommodations for
Franklin’s appearance at the IME.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this
ruling with the Court within five days.
The parties are directed to the header of this
tentative ruling for further instructions.