Judge: Lisa R. Jaskol, Case: 20STCV08189, Date: 2024-02-14 Tentative Ruling
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Case Number: 20STCV08189 Hearing Date: February 14, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On February 26, 2020, Plaintiff Jessica Darlene Navarro (“Plaintiff”) filed this action against Defendants Honorio Orozco Trucking Inc. (“Trucking”), Percy Maximo Rojas Huaraca (“Huaraca”), and Does 1-50 for negligence.
On August 20, 2020, Plaintiff filed a first amended complaint against the same defendants for negligence – common carrier.
On June 16, 2022, Plaintiff filed a second amended complaint against the same defendants for negligence.
On July 18, 2022, Huaraca filed an answer. On August 5, 2022, Trucking filed an answer.
On September 26, 2023, Trucking filed motions (1) to extend discovery and motion deadlines and (2) to compel Plaintiff’s independent medical examination. The motions were set for hearing on January 16, 2024. The Court continued the hearings to February 14, 2024. On January 3, 2024, Plaintiff filed oppositions. On January 8, 2024, Trucking filed a reply to both oppositions.
On January 30, 2024, the Court granted the parties’ stipulated request to continue the trial to August 30, 2024, and to continue all trial-related deadlines to correspond to the new trial date.
Trial is currently scheduled for August 30, 2024.
PARTIES’ REQUESTS
Trucking asks the Court (1) to continue or reopen discovery to match the current trial date, (2) to compel Plaintiff to appear for an independent medical examination with Dr. Steven Dennis, and (3) to impose sanctions.
Plaintiff asks the Court to deny the motions.
LEGAL STANDARD
A. Motion to continue or reopen discovery
Code of Civil Procedure section 2024.020 provides:
“(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.
“(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.”
(Code Civ. Proc., § 2024.020.)
Code of Civil Procedure section 2024.050 provides:
“(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:
“(1) The necessity and the reasons for the discovery.
“(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.
“(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.
“(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.
“(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, 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 Civ. Proc., § 2024.050.)
B. Motion to compel physical examination
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.)
Code of Civil Procedure section 2032.230 provides:
“(a) 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.
“(b) Within 20 days after service of the demand the plaintiff to whom the demand is directed shall serve the original of the response to it on the defendant making the demand, and a copy of the response on all other parties who have appeared in the action. On motion of the defendant making the demand, the court may shorten the time for response. On motion of the plaintiff to whom the demand is directed, the court may extend the time for response.”
(Code Civ. Proc., § 2032.230.)
Code of Civil Procedure section 2032.240 provides:
“(a) If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand. The court, on motion, may relieve that plaintiff from this waiver on its determination that both of the following conditions are satisfied:
“(1) The plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230.
“(2) The plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.
“(b) The defendant may move for an order compelling response and compliance with a demand for a physical examination.
“(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.
“(d) If a plaintiff then fails to obey the order compelling response and compliance, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
(Code Civ. Proc., § 2032.240.)
Code of Civil Procedure section 2032.310 provides:
“(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 a mental examination, the party shall obtain leave of court.
“(b) 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.
“(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.
* * *
“(e) 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, subds. (a), (d), (e).)
DISCUSSION
A. Trucking’s motion to continue or reopen discovery is moot
Trucking has moved for an order extending discovery and motion deadlines to permit Trucking to complete Plaintiff’s independent medical exam with Dr. Steven Dennis within 30 days before trial.
The motion is moot because on January 30, 2024, the Court granted the parties’ stipulated request to continue the trial to August 30, 2024, and to continue all trial-related deadlines to correspond to the new trial date.
B. Trucking’s motion to compel Plaintiff’s independent medical examination
On September 17, 2021, Plaintiff attended an independent medical examination with Dr. Nitin Bhatia, which Huaraca noticed. Defendant argues that Plaintiff did not cooperate with the examination and the examination was incomplete. (Choi Dec. ¶ 9.)
On June 20, 2023, Trucking noticed Plaintiff’s independent medical examination with Dr. Steven Dennis, setting it on September 13, 2023. On September 6, 2023 – after the deadline to serve an objection (see Code Civ. Proc., § 2032.230, subd. (b)) – Plaintiff’s counsel stated that Plaintiff would not appear for the examination because she had previously attended an examination noticed by Huaraca. Plaintiff did not attend the September 13, 2023 independent medical examination. (Choi Dec. ¶¶ 13-16.) Trucking then filed this motion.
Plaintiff disputes Trucking’s assertion that Plaintiff did not cooperate during the September 17, 2021 independent medical examination. Plaintiff asserts that she “participated in the entire orthopedic physical examination.” (Opposition p. 3.) In addition, Plaintiff argues that her representative objected only to “improper” questions about (1) the facts of the collision, e.g., airbag deployment and mechanism of injury, (2) employment history, (3) chronic medical illness history, and (4) social history. (Opposition p. 4.)
Plaintiff also argues that Huaraca and Trucking are, “for all intents and purposes, the same party” because Huaraca was acting in the course and scope of his employment with Trucking when the accident took place and the same insurance policy covers both of them. (Opposition pp. 4-5.) As a result, Plaintiff argues, Plaintiff was required to submit to only one examination, which already took place. (But see Code Civ. Proc., § 2032.220, subd. (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” (emphasis added)].)
Plaintiff has waived these and other objections (see Opposition pp. 6-8) to the independent medical examination which Trucking noticed. Plaintiff does not dispute Trucking’s assertion that Plaintiff’s counsel did not object to Trucking’s notice of the independent medical examination until after the statutory deadline had passed. (See Code Civ. Proc., § 2032.230, subd. (b).) The Court has not relieved Plaintiff of this waiver. (See Code Civ. Proc., § 2032.240, subd. (a).) Therefore, Plaintiff was not permitted to ignore Trucking’s notice of the September 13, 2023 independent medical examination.
The Court grants Trucking’s motion. (See Code Civ. Proc., §§ 2032.220, 2032.240, subd. (b).)
On February 14, 2024, Trucking withdrew its request for $600.00 in sanctions to compensate it for the “no show” charge resulting from Plaintiff’s late objection to Trucking's notice of the September 13, 2023 independent medical examination.
CONCLUSION
The Court DENIES as moot Defendant Honorio Orozco Trucking Inc.’s motion to continue or reopen discovery.
The Court GRANTS Defendant Honorio Orozco Trucking Inc.’s motion to compel Plaintiff Jessica Darlene Navarro to attend an independent medical examination with Dr. Steven Dennis under Code of Civil Procedure section 2032.220. Plaintiff Jessica Darlene Navarro is ordered to appear for an independent medical examination with Dr. Steven Dennis within 30 days of the hearing on this motion, on a date to be set by Defendant Honorio Orozco Trucking Inc. after consulting with counsel for Plaintiff.
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.