Judge: Lisa R. Jaskol, Case: 19STLC11732, Date: 2023-08-14 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org.  Include the word "SUBMITS" in all caps and the Case Number in the Subject line.  In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument.  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 you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.     If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.
                          
            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.   
 
            If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.  

Case Number: 19STLC11732    Hearing Date: August 14, 2023    Dept: 28

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

BACKGROUND 

On December 26, 2019, Plaintiff Dzmitry Suyetsin (“Plaintiff”) filed this action against Defendant Nathan Khoa Dang Nguyen (“Defendant”) for motor vehicle negligence. 

On January 3, 2020, Defendant filed a general denial. 

On October 7, 2021, the Court found that this case (Case number 19STLC11732) and Case number 19STCV34204 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 19STCV34204 became the lead case. The cases were assigned to Department 28 at the Spring Street Courthouse for all purposes. 

On October 21, 2021, the Court granted Plaintiff’s motion to reclassify this case (Case number 19STLC11732) as an unlimited jurisdiction case. 

On July 19, 2023, Defendant filed a motion to compel Plaintiff’s attendance at a defense medical examination and for sanctions to be heard on August 14, 2023. On August 1, 2023, Plaintiff filed an opposition. On August 7, 2023, Defendant filed a reply. 

Trial is currently scheduled for January 24, 2024. 

PARTIES’ REQUESTS 

Defendant requests that the Court order Plaintiff to appear for a physical examination by orthopedic surgeon Dr. Neil Ghodadra at 16444 Paramount Blvd., Suite #204, Paramount, CA 90723 on September 6, 2023. Defendant also requests that the Court impose $1,027.65 in sanctions on Plaintiff. 

Plaintiff requests that the Court deny the motion. 

LEGAL STANDARD  

Code of Civil Procedure section 2032.220 provides: 

“(a) 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. 

“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first. 

“(c) A demand 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 physician who will perform the examination. 

“(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time. 

“(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.” 

(Code Civ. Proc., § 2032.220.) 

“The plaintiff to whom a demand for a physical examination under this article is directed shall respond to the demand by a written statement that the examinee 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 Civ. Proc., § 2032.230, subd. (a).) 

Code of Civil Procedure section 2032.510, subdivision (a) provides: 

“The attorney for the examinee or for a party producing the examinee, or that attorney’s representative, shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination."

(Code Civ. Proc., § 2032.510, subd. (a).) 

DISCUSSION 

A.   Attempts to schedule and conduct Plaintiff’s physical examination 

On January 24, 2023, counsel for Defendant served Plaintiff with a Demand for Orthopedic Examination for Plaintiff’s attendance on February 13, 2023. Plaintiff did not file an objection. Days before the examination, Plaintiff advised he was not feeling well and needed to reschedule the examination. (Declaration of Brandye Foreman (Foreman Dec.) ¶ 5) 

Counsel for both parties agreed to reschedule the examination for March 2, 2023. Plaintiff’s counsel advised that Plaintiff would require a Russian interpreter to assist with the examination and Defendant’s counsel agreed to provide an interpreter.  On February 15, 2023, counsel for Defendant served Plaintiff with a Second Demand for Orthopedic Examination for Plaintiff’s attendance on March 2, 2023. Plaintiff did not file an objection. (Foreman Dec. ¶¶ 6-7.) 

On March 2, 2023, Plaintiff appeared for the examination unaccompanied by his attorney or a designated representative. Plaintiff attempted to record the examination. The doctor refused to complete the examination due to Plaintiff’s efforts to record it. Defendant’s counsel called the doctor’s office while Plaintiff was there and the doctor agreed to complete the examination and allow the recording if the recording was done by Plaintiff’s attorney or the attorney’s representative. (Foreman Dec. ¶ 9.)  The examination was not resumed or completed or March 2. 

On March 31, 2023, Plaintiff’s counsel proposed to Defendant’s counsel that Plaintiff’s counsel participate remotely in the examination as an alternative to having Plaintiff record the examination.  (Exh. E to Foreman Dec.) 

On April 26, 2023, Defendant served Plaintiff with a Third Demand for Orthopedic Examination for Plaintiff’s attendance on May 10, 2023. On April 27, 2023, Plaintiff served a response, asserting he had a right to record the examination. 

On May 3 and 4, 2023, the parties met and conferred in an effort to resolve the issue of Plaintiff recording the examination. Plaintiff’s counsel again proposed to Defendant's counsel that Plaintiff's counsel attend the examination remotely.  (Exh. E to Foreman Dec.) Plaintiff’s counsel declined to send an associate or representative to attend the examination in person, citing distance and cost. (Foreman Dec. ¶¶ 11-13.) 

On July 17, 2023, Plaintiff’s counsel sent Defendant’s counsel an email noting that Plaintiff had previously offered, as an alternative to Plaintiff himself recording the examination, to have Plaintiff’s counsel attend and record the examination remotely.^[1]  According to Plaintiff’s counsel, Defendant’s counsel did not respond to this proposal.  Plaintiff’s counsel stated: “Since the defense refused to accept our reasonable condition for a stipulation, a court order will be necessary for the Defense to proceed” with the examination.  (Exh. F to Foreman Dec.) 

On July 17, 2023, Defendant served Plaintiff with a Fourth Demand for Orthopedic Examination (Exhibit G) for Plaintiff’s attendance on September 6, 2023 with Dr. Neil Ghodadra at his office located at 16444 Paramount Blvd., Suite #204, Paramount, CA 90723. (Foreman Dec. ¶ 14.)  On July 19, 2023, Defendant filed this motion. 

B.   Defendant’s motion to compel 

Defendant argues he “made a diligent effort to resolve the issue” of Plaintiff wanting to record the examination before filing his motion to compel.  Defendant does not explain, however, why he did not accept or at least explore Plaintiff’s counsel's offer to have Plaintiff’s counsel attend and record the examination remotely.  Plaintiff’s counsel’s proposal appears to satisfy the concerns expressed by Defendant and Defendant’s doctor and is consistent with Code of Civil Procedure section 2032.510, subdivision (a).  

Likewise, the evidence submitted in support of Defendant’s motion contradicts Defendant’s assertion that, at the end of the meet and confer efforts, “counsel for Plaintiff expressed that Plaintiff would not attend the examination unless Plaintiff himself was allowed to record the examination.”  (Motion p. 4, bold and italics in the original.)  As set forth above, Plaintiff's counsel offered a reasonable alternative: Plaintiff's counsel would attend and record the examination remotely.  Instead of exploring this reasonable alternative, Defendant filed a motion to compel. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant Nathan Khoa Dang Nguyen’s motion to compel Plaintiff Dzmitry Suyetsin’s attendance at a defense medical examination. 

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.