Judge: Daniel M. Crowley, Case: 20STCV36312, Date: 2023-03-01 Tentative Ruling

Case Number: 20STCV36312    Hearing Date: March 1, 2023    Dept: 28

Defendants Admiral Pest Control, Inc and Anthony Lee Bearden’s Motion to Compel Plaintiff Amy Melissa Mata’s Independent Medical Exams

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On September 23, 2020, Plaintiff Amy Melissa Mata (“Plaintiff”) filed this action agianst Defendants Admiral Pest Control, Inc (“APC”) and Anthony Lee Bearden (“Bearden”) for negligence and negligence per se.

On October 23, 2020, Defendants filed an answer.

On February 3, 2023, Defendants filed a Motion to Compel Plaintiff’s IMEs to be heard on March 1, 2023. On February 15, 2023, Plaintiff filed an opposition. On February 22, 2023, Defendants filed a reply.

Trial is currently scheduled for May 2, 2023.

PARTY’S REQUESTS

Defendants request the Court order Plaintiff to attend an IME with neuropsychiatrist James Rosenberg, M.D., and neuropsychologist Ari Kalechstein, Ph.D., on April 5, 2023, at 10:30 a.m. at Executive Mental Health, Inc. Located at 11835 W. Olympic Blvd., East Tower, 12^th Floor 1265E, Los Angeles, CA 90064. Defendants also request the Court order Plaintiff to pay $4,350.00 in sanctions.

Plaintiff requests the Court deny the motion and grant Plaintiff sanctions totaling $2,000.00.

LEGAL STANDARD

A defendant may demand one physical examination of the plaintiff in applicable personal injury cases, so long as the examination is not pain 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

Plaintiff alleges that as a result of the subject incident, Plaintiff sustained injuries to her neck, shoulder, back and right leg, as well as symptoms consistent with a TBI. Plaintiff’s subpoenaed records reflect Plaintiff’s neurological complaints include neurocognitive deficits and behavioral problems, PTSD, adjustment disorder, mixed anxiety and other forms of visual and auditory injuries. Plaintiff has put her neurological state at issue.

On February 15, 2022, the Court granted leave for Defendants’ to serve Plaintiff with a demand for IME with Dr. Rosenberg. Defendants set the date for November 21, 2022, providing over 100 days-notice to Plaintiff of the upcoming date. Plaintiff failed to respond, object or give notice of her intent not to appear, and then failed to appear.

Plaintiff argues that the Court only granted leave for Dr. Rosenberg to take Plaintiff’s IME. By including Dr. Kalchenstein as well, Defendants have not abided by the Court order. Defendants argue that Plaintiff’s counsel originally stated they would allow Plaintiff to sit for an exam with either Dr. Kalchenstein or Dr. Rosenberg. Based on that representation, Defendants selected Dr. Kalechstein as their ‘voluntarily agreed-upon' choice and filed the Motion to Compel for Dr. Rosenberg.

The Court disagrees with Defendants. There is no indication that parties agreed to an IME with Dr. Kalchenstein prior to the filing of the Motion to Compel that would indicate Plaintiff was on notice that this alleged offer had been accepted. In the absence of evidence of confirmation or agreement, it is reasonable to assume that Plaintiff’s may have interpreted Defendants’ motion as Defendants ‘choosing’ Dr. Rosenberg. There is no evidence that parties agreed to Dr. Kalchenstein’s IME, nor is there any granting of leave from the Court. The Court’s Feburary 15, 2022, minute order does not discuss the fact there was another agreed to IME with a specialist in the same field, which is common when the Court is deliberating on whether IMEs may be unduly cumulative. It does not appear that either Plaintiff or the Court assumed that Dr. Kalchenstein’s IME had been stipulated to prior to the ruling. Plaintiff’s opposition simply notes they had agreed to one IME, and the attached exhibit indicates they were willing to undergo one with either doctor. Presumably, that means that any agreement to one would be revoked upon the Court granting leave for the other. Therefore, the Court will only grant the motion as to Dr. Rosenberg.

The Court will not award sanctions as both parties have misused the discovery process. Defendants wrongfully noticed an IME for a doctor that was not agreed upon or ordered by the Court. Plaintiff wrongfully failed to object to the IME or provide notice that Plaintiff did not intend to appear.

CONCLUSION

Defendants Admiral Pest Control, Inc and Anthony Lee Bearden’s Motion to Compel Plaintiff Amy Melissa Mata’s Independent Medical Exams is GRANTED, in part. Plaintiff is ordered to appear for an IME with neuropsychiatrist James Rosenberg, M.D., on April 5, 2023, at 10:30 a.m. at Executive Mental Health, Inc. Located at 11835 W. Olympic Blvd., East Tower, 12^th Floor 1265E, Los Angeles, CA 90064. The motion is denied as to neuropsychologist Ari Kalechstein, Ph.D.

Defendants Admiral Pest Control, Inc and Anthony Lee Bearden’s Request for Sanctions is DENIED.

Plaintiff Amy Melissa Mata’s Request for Sanctions is DENIED.

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.