Judge: Kerry Bensinger, Case: 21STCV21291, Date: 2023-10-02 Tentative Ruling

Case Number: 21STCV21291    Hearing Date: October 2, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 2, 2023                                 TRIAL DATE:  April 29, 2024

CASE:                                Umar Saifullahkhan v. Nu To Mach

CASE NO.:                 21STCV21291

MOTION TO COMPEL PLAINTIFF TO SUBMIT TO A PHYSICAL

MEDICAL EXAMINATION AT A LOCATION

MORE THAN 75 MILES FROM PLAINTIFF’S RESIDENCE

MOVING PARTY:               Defendant Nu Mach

RESPONDING PARTY:     Plaintiff Umar Saifullahkhan Babar

I.          INTRODUCTION

            On June 8, 2021, Plaintiff, Umar Saifullahkhan Babar, filed a form complaint against Defendant, Nu Mach (erroneously sued as “Nu To Mach”), for injuries arising from a motor vehicle collision in Rosemead, California.  At the time of the incident, Plaintiff was residing in Monrovia, California.

            On June 15, 2023, Defendant served Plaintiff with a demand for physical examination by Dr. Jeffrey Korchek.  Plaintiff objected to the examination on the grounds that the examination was more than 75 miles from Plaintiff’s residence.  Sometime after the incident and during the pendency of this litigation, Plaintiff relocated to Sweden.  Thereafter, Defendant offered to pay for Plaintiff’s reasonable travel expenses, hotel expenses, and meal expenses if Plaintiff agreed to attend an examination with Dr. Korchek in Los Angeles County.  Plaintiff refused.

            On August 18, 2023, Defendant filed this motion to compel Plaintiff to submit to a physical examination more than 75 miles from Plaintiff’s residence.  Defendant does not seek sanctions.

            Plaintiff opposes and Defendant replies. 

II.        LEGAL STANDARD TO COMPEL PHYSICAL EXAMINATION

            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 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 Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code Civ. Proc., § 2032.220, subd. (d)). 

             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 a mental examination, the party shall obtain leave of court.  (Code Civ. Proc., § 2032.310, subd. (a).)  The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.  (Code Civ. Proc., § 2032.320, subd. (a).)  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. (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.  (Code Civ. Proc., § 2032.320, subd. (e)(1)-(2).)   

III.       DISCUSSION

            Plaintiff does not object to submitting to a physical examination.  The sole issue to be decided is whether good cause exists to compel Plaintiff to attend a physical examination with Defendant’s medical expert more than 75 miles from Plaintiff’s current residence of Sweden.

            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. (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.  (Code Civ. Proc., § 2032.320, subd. (e)(1)-(2).)   

            The Court finds good cause exists to compel Plaintiff’s attendance for a physical examination with Dr. Korchek in Los Angeles County.  In making this finding, the Court is guided by the following undisputed facts: (1) Plaintiff filed this case in Los Angeles County and received treatment in Los Angeles County for his alleged injuries; (2) Plaintiff resided in Monrovia, California at the time of the incident and is employed by SAG-AFTRA in Los Angeles, California (Plaintiff’s Responses to Form Interrogatories No. 2.5, Ex. B); (3) Plaintiff’s counsel first notified Defendant on July 5, 2023 that Plaintiff had moved; (4) Plaintiff testified that he splits his time between California, Sweden, and Pakistan (Plaintiff’s Depo., pp. 10:5-14:2, 20:6-24:17, Ex. I); and (5) Plaintiff also testified that he was last in the United States three weeks before his July 27, 2023 deposition.  Over the last five years, he has spent 30 to 40 percent of his time in California (Plaintiff’s Depo., pp. 10:25-11:14, Ex. I).  In sum, the foregoing facts establish Plaintiff has frequent contact with California.  The burden upon Plaintiff to travel to California for his physical examination (and the diligent prosecution of his case in Los Angeles County) is slight, especially since Defendant has also offered to pay Plaintiff’s reasonable travel expenses.  Further, Plaintiff failed to apprise Defendant of his intention to move to Sweden and belatedly notified Defendant of Plaintiff’s relocation.  This is some evidence Plaintiff attempted to avoid Defendant’s choice of medical expert.  “The choice of the examining physician generally belongs to the defendant....”  (Pratt v. Union Pac. R.R. Co. (2008) 168 Cal.App.4th 165, 181.)  Whereas Plaintiff is familiar with California, there is no indication that Defendant is likewise familiar with Sweden and examining physicians in that country who can conduct Plaintiff’s physical examination.  Indeed, Plaintiff’s counsel mentioned Plaintiff had moved more than 75 miles from Los Angeles County only after Defendant served her demand for Plaintiff’s physical examination. 

            The Order granting Defendant’s motion is strictly conditioned upon payment of Plaintiff’s reasonable travel expenses.   

IV.       CONCLUSION

            The motion is granted.  Plaintiff Umar Saifullahkhan Babar is ordered to attend a physical examination with Dr. Jeffrey Korchek on November 22, 2023, 10:30 a.m., at 2625 W. Alameda Ave., #116, Burbank, CA 91505.   

            Defendant is to pay Plaintiff’s travel expenses, including food and lodging, incurred in connection with attending the physical examination.

Moving party to give notice. 

Dated:   October 2, 2023                                           ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.