Judge: Lisa R. Jaskol, Case: 20STCV12193, Date: 2024-12-03 Tentative Ruling
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Case Number: 20STCV12193 Hearing Date: December 3, 2024 Dept: 28
Having considered the moving papers and notice of non-opposition, the Court rules as follows.
BACKGROUND
On March 27, 2020, Plaintiff Sasoon Abramian (“Plaintiff”) filed this action against Defendants Vincenti Family Trust, John C. Vincenti, Palma J. Vincenti, and Does 1-50 for general negligence and premises liability.
On December 20, 2021, Defendants Vincenti Family Trust and John C. Vincenti filed an answer. On February 17, 2022, Defendant Palma J. Vincenti filed an answer.
On September 30, 2024, Defendants Vincenti Family Trust, John C. Vincenti, and Palma J. Vincenti (“Defendants”) filed a motion to compel Plaintiff’s orthopedic examination in California. The motion was set for hearing on December 3, 2024. Plaintiff has not filed an opposition. On November 27, 2024, Defendants filed a notice of non-opposition stating that (1) on November 18, 2024, Plaintiff’s counsel sent a letter to Defendants’ counsel agreeing that Plaintiff would attend the orthopedic examination in California, but (2) Defendants still want the Court to rule on their motion.
PARTIES’ REQUESTS
Defendants ask the Court to compel Plaintiff to attend an orthopedic examination in California.
DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
The Court grants Defendants’ request for judicial notice of Exhibit A. The Court denies Defendants’ request for judicial notice of Exhibits B and C.
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.
“(b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.
“(c) A stipulation by a party under this subdivision shall include both of the following:
“(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.
“(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.
“(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.
“(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.)
DISCUSSION
On or about May 29, 2024, Defendants served a demand for Plaintiff's physical examination by board-certified orthopedic surgeon Scott K. Forman, M.D., to take place on August 22, 2024, at California Orthopaedic Specialists, 360 San Miguel Drive, Suite 701, Newport Beach, CA 92660. (Sakai dec. ¶ 6; exh. C.)
On July 30, 2024, Plaintiff’s counsel informed Defendants’ counsel that Defendants’ physical examination of Plaintiff had to be within 75 miles of Plaintiff’s residence, which was in Iran. (Sakai dec. ¶ 8; exh. E.) Plaintiff’s counsel maintained this position during meet and confer discussions between on or about August 1, 2024 and September 10, 2024. (Sakai dec. ¶ 9.)
On September 30, 2024, Defendants filed this motion to compel Plaintiff to attend an orthopedic examination in California.
On November 4, 2024, Defendants filed a motion to require Plaintiff to furnish a security bond of $65,000.00 under Code of Civil Procedure section 1030 based on his residence in Iran.
On November 18, 2024, Plaintiff’s counsel sent a letter to Defendants’ counsel agreeing that Plaintiff would attend an orthopedic examination in California on January 14, 2025. In the letter, Plaintiff’s counsel stated that Plaintiff “has always resided in the State of California” and “has never changed his residency to anywhere outside the State of California.” Plaintiff’s counsel also demanded that Defendants withdraw their motion to require Plaintiff to furnish a security bond.
The Court finds good cause and grants Defendants’ motion to compel Plaintiff to attend an orthopedic examination in California. Although Plaintiff’s counsel has now agreed that Plaintiff will attend a January 14, 2025 orthopedic examination with Dr. Foreman in Newport Beach, the Court concludes the issue is not moot in light of Plaintiff’s shifting positions on his place of residence. (The Court makes no finding about Plaintiff's place of residence.)
CONCLUSION
The Court GRANTS the motion to compel Plaintiff Sasoon Abramian’s orthopedic examination filed by Defendants Vincenti Family Trust, John C. Vincenti, and Palma J. Vincenti.
Board-certified
orthopedic surgeon Scott K. Forman, M.D. will conduct Plaintiff’s physical examination
at California Orthopaedic Specialists, 360 San Miguel Drive, Suite 701, Newport
Beach, CA 92660, on a date and time to which the parties agree, but no later
than 30 days after the Court's order.
The examination will consist of an interview and an orthopedic examination. During the interview, Dr. Forman will elicit from Plaintiff a detailed account of the onset and course of his orthopedic conditions. Dr. Forman's examination will be clinical in nature. The examination may be physical but may not be invasive. Defendants will pay Dr. Forman's examination fees and all related costs of the examination. Plaintiff will be responsible for any cancellation fees that arise from his conduct.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling within five days.