Judge: Jill Feeney, Case: 21STCV39069, Date: 2023-02-15 Tentative Ruling
Case Number: 21STCV39069 Hearing Date: February 15, 2023 Dept: 30
Department 30, Spring Street Courthouse
February 15, 2023
21STCV39069
Motion for Leave to Conduct Plaintiff’s Medical Examination at a More Distant Place
DECISION
The motion is granted.
Plaintiff is ordered to appear at the March 7, 2023 IME.
Defendant shall advance the costs of travel.
Moving party to provide notice and to file proof of service of such notice within five court days.
Background
This is an action for negligence arising from a vehicle collision which took place in December 2019. Plaintiff Jaime Diaz filed his Complaint against Defendant Liu Ming Shing on October 22, 2021.
On October 31, 2022, Defendant filed the instant motion for leave to conduct a more distant medical examination of Plaintiff.
Summary
Moving Arguments
Defendant argues that good cause exists for a more distant medical examination because Plaintiff resides in Arizona, Plaintiff was treated for his injuries in Los Angeles, the incident took place in Los Angeles, and a medical practitioner in Arizona is not qualified to comment on the cost of medical care in California. Defendant will pay for the costs of travel.
Opposition Arguments
Plaintiff argues that the IME notice is flawed because the location of the IME is farther than 75 miles from Plaintiff’s residence and Plaintiff does not plan to return to California. Plaintiff also requests sanctions.
Reply Arguments
Defendant reiterates arguments from his motion.
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).)
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 mental examination, the party shall obtain leave of court. (Code Civ. Proc., §2032.310, subd. (a).) 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. (Id., subd. (b).)
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Id., § 2032.320, subds. (a), (d).) 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 and (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. (Id., subd. (e).)
Discussion
Defendants seek leave to conduct a more distant IME of Plaintiff.
Defendant’s counsel testifies that Plaintiff is seeking $71,000 in damages for medical expenses for MRIs, Epidural Steroid Injections, physical therapy, chiropractic care, orthopedic care, and pain management treatment, all of which he received in California. (Kowalski Decl., ¶5.) The only treatment Plaintiff received in Arizona was one physical therapy session in Arizona. (Id.) Because Plaintiff was treated in Los Angeles, Defendant’s counsel requested that Plaintiff agree to be examined in California. (Id., ¶7.) Plaintiff’s counsel refused the request and then failed to provide further responses to Defendant’s counsel’s inquiries. (Id., ¶¶9-11.)
Plaintiff’s opposition states that Defendant improperly noticed the IME for a location greater than 75 miles away from Plaintiff’s residence and that Plaintiff does not reside in California. Plaintiff makes no argument as to whether there is good cause for the travel involved in conducting an IME in California.
Defendant’s evidence shows good cause exists for Plaintiff to travel to California for his IME. Plaintiff was treated primarily in California. A medical practitioner in Arizona will be unable to opine on the cost of treatment in California, where Plaintiff was treated. Defendant has also agreed to pay for the cost of Plaintiff’s travel. Having met the requirements of Code Civ. Proc., section 2032.320, subd. e, Defendant’s motion is granted. Defendant does not seek sanctions.
