Judge: Kerry Bensinger, Case: 18STCV00632, Date: 2023-01-30 Tentative Ruling

Case Number: 18STCV00632    Hearing Date: January 30, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On October 9, 2018, plaintiff Cristian Marisol Macias Jimenez (“Plaintiff”) filed this motor vehicle negligence action against defendants Jonathan Ben Yoel and Eliyahu Yoel (collectively, “Defendants”). Trial is currently scheduled for April 17, 2023. 

On December 30, 2022, Defendants filed the instant motion to compel the physical examination of Plaintiff. Plaintiff opposes.

II.          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 where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code of Civ. Proc., § 2032.220, subd. (a).) A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code of Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code of Civ. Proc., § 2032.220, subd. (d)).

Within 20 days after service of the demand, the plaintiff to whom the demand is directed shall serve a written statement that he or she will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination. (Code of Civ. Proc., § 2032.230, subd. (a).)

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and 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 of Civ. Proc., § 2032.240, subd. (c).)

DISCUSSION

Here, after multiple rescheduling of Plaintiff’s physical exam, Defendants served, on March 14, 2022, a third notice of IME set for July 27, 2022. (Yerzinkyan Decl., Exh. D.) On July 27, 2022, Plaintiff did not appear for the exam. (Yerzinkyan Decl., Exh. E.)

Plaintiff does not oppose Defendants’ entitlement to the physical examination but opposes based on Defendants’ lack of confirmation of the appointment, and lack of meet and confer after the missed appointment. Plaintiff argues that the IME was set after the trial date, and thus it was invalid at that time.  Further, it was the understanding of the parties that they would stipulate to a trial continuance to conduct the IME and conduct Plaintiff’s deposition. It was further Plaintiff’s understanding that the IME was to occur after Plaintiff’s deposition, which had not occurred as of the IME date. Thus, Plaintiff asserts there was a lack of communication which could have avoided the missed IME and filing of this motion.As Plaintiff points out, the requested IME date is May 3, 2023, which is after the current trial date of April 17, 2023. Thus, the Court may not order Plaintiff to attend this examination as it is past the discovery cut off date and trial date. As it is not disputed that Defendants are entitled to the physical examination of Plaintiff, counsels are to confer as to another date for the IME or obtain a trial and discovery continuance prior to making this motion.
III       CONCLUSION

Defendants’ motion is DENIED without prejudice.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 30th day of January 2023