Judge: Lisa R. Jaskol, Case: 20STCV48899, Date: 2024-04-24 Tentative Ruling
Case Number: 20STCV48899 Hearing Date: April 24, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On December 22, 2020, Plaintiff Art Payne (“Plaintiff”) filed this action against Defendants Marco Carreon, Vickey Carreon, and Does 1-50 for negligence.
On July 14, 2022, Defendants Marco Carreon and Vicky Carreon (erroneously sued as Vickey Carreon) filed an answer.
On March 28, 2024, Defendants filed a motion for leave to conduct an independent medical examination of Plaintiff and for sanctions, to be heard on April 24, 2024. Plaintiff has not filed an opposition.
Trial is currently scheduled for June 21, 2024.
PARTY’S REQUESTS
Defendants ask the Court to compel Plaintiff to appear for a physical (orthopedic) examination with Kevin J. Triggs, M.D., on May 6, 2024, at 1310 W. Stewart Drive, Suite 410, Orange, California. Defendants also request $961.65 in sanctions.
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 2032.240 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) . . . , 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 in part:
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
Defendants ask the Court for leave to conduct Plaintiff’s physical (orthopedic) examination under Code of Civil Procedure section 2032.310, which provides that “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210) . . . , the party shall obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).) “The court shall grant a motion for a physical . . . examination under Section 2032.310 only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (a).)
Defendants contend that they have established good cause for the Court to grant leave to conduct Plaintiff’s examination because (1) Plaintiff has put his physical condition at issue and (2) Plaintiff has refused to submit to an orthopedic examination.
Defendants do not explain, however, why they require leave of Court. Under Code of Civil Procedure section 2032.220, “[i]In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff,” as long as “[t]he examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive” and “[t]he examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220, subd. (a).) If a plaintiff refuses to comply with a demand for a physical examination under Code of Civil Procedure section 2032.220, the defendant “may move for an order compelling . . . compliance with [the] demand . . . .” (Code Civ. Proc., § 2032.240, subd. (b).)
In the portion of their motion requesting sanctions, Defendants’ assert that Plaintiff “fail[ed] to appear at previously-noticed IMEs without objection or notice . . . .” (Motion p. 6.) According to Defendants, they initially noticed Plaintiff’s examination with Dr. Triggs for December 4, 2023, at 9:30 a.m. (Motion p. 7; see exh. B [Demand for Independent Medical Examination].) Plaintiff did not appear for the examination despite failing to object to the date or time. (Motion p. 7.) Defendants’ motion also refers to an anticipated examination by “Dr. Samudrala, Defendants’ retained neurosurgeon.” (Motion p. 6.) In a January 15, 2024 email, Plaintiff’s counsel told Defendants’ counsel, “I cannot agree to two physical DME's. And I cannot agree to a second one until I've seen the first report as I do not want to have duplicative tests.”
Defendants provide no other information about the basis for, or status of, their attempts to conduct other examinations of Plaintiff. Without this information, and without an explanation of why Defendants seek relief under Code of Civil Procedure section 2032.310, subdivision (a), rather than Code of Civil Procedure section 2032.240, subdivision (b), the Court cannot determine if Defendants have good cause to conduct Plaintiff’s physical (orthopedic) examination.
The Court denies the motion.
CONCLUSION
The Court DENIES the motion of Defendants Marco Carreon and Vicky Carreon for leave to conduct an independent medical examination of Plaintiff Art Payne and for sanctions filed on March 28, 2024.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.