Judge: Lisa R. Jaskol, Case: 20STCV48899, Date: 2025-03-21 Tentative Ruling
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Case Number: 20STCV48899 Hearing Date: March 21, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
PROCEDURAL HISTORY
A. Prior proceedings
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 November 19, 2024, the Court dismissed Vickey Carreon with prejudice at Plaintiff’s request.
Trial is currently scheduled for May 8, 2025.
B. These motions
On December 30, 2024, Defendant Marco Carreon (“Defendant”) filed a motion for leave to conduct an additional medical examination of Plaintiff. The motion was set for hearing on February 5, 2025. On January 23, 2025, Plaintiff filed an opposition. On January 29, 2025, Defendant filed a reply. The Court continued the hearing to March 21, 2025.
On January 29, 2025, Defendant filed a motion to compel Plaintiff's further responses to special interrogatories, set four, and for sanctions. The motion was set for hearing on March 12, 2025. Plaintiff did not file an opposition. The Court continued the hearing to March 21, 2025.
PARTIES’ REQUESTS
A. Motion for leave to conduct additional medical examination
Defendant asks for leave to conduct an additional medical examination of Plaintiff with Kevin Triggs, M.D., on February 14, 2025, at 1:30 p.m., at 1310 W. Stewart Drive, Suite 410, Orange, California 92868.
Plaintiff asks the Court to deny the motion.
Defendant asks the Court to compel Plaintiff's further responses to special interrogatories, set four, and to impose sanctions on Plaintiff.
I. Defendant's motion for leave to conduct additional medical examination
A. 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.)
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 in part:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . ."
* * *
“(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. . . ."
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
B. Discussion
1. Background
On July 24, 2024, Plaintiff appeared for a neurosurgical examination with defense expert Dr. Srinath Samudrala.
On July 30, 2024, Defendant served a demand for Plaintiff’s orthopedic physical examination by Dr. Triggs, an orthopedic surgeon, on September 13, 2024.
On September 5, 2024, Plaintiff served a response stating that he would comply with the demand for an examination by Dr. Triggs subject to several terms and conditions including:
· “Plaintiff will not orally relate medical history nor related to the areas of injuries claimed in this action [sic]. Further Plaintiff has a right to assume that the examination process will not require him to provide a lengthy history to the doctor, because all relevant medical records should have been provided to the doctor sufficiently in advance of the examination so as to not waste anyone’s time. Those records provide the most accurate and reliable history to the doctor.”
· “Plaintiff will not be bringing or producing any prior medical records as Defendant either already has them in his possession, or has subpoenaed them from the facilities directly. Because the Code does not require it, Plaintiff will not provide a lifetime medical history to the examiner. However, Plaintiff will answer general questions about the injuries at issue, and the body parts at issue.”
Afterward, Defendant’s counsel tried to reschedule Plaintiff’s examination by Dr. Triggs. Plaintiff’s counsel refused to reschedule the examination. Defendant then filed this motion.
2. Parties’ contentions
a. Defendants’ contentions
Defendant argues that “Dr. Samudrala is a neurosurgeon. He examined Plaintiff to evaluate Plaintiff’s back and neck injuries. Dr. Triggs is an orthopedic surgeon. He needs to examine Plaintiff to evaluate Plaintiff’s shoulder, arm, and knee injuries.” (Motion p. 7.)
Quoting Dr. Triggs’ declaration, Defendant also asserts that “[t]he medical examination with Dr. Samudrala is a neurosurgical examination which is a different lens and scope of medicine compared to the orthopedic surgical examination [Dr. Triggs] will perform on Plaintiff.” (Motion p. 7; see Triggs dec. ¶ 20.)
In addition, Defendant contends that “Dr. Triggs needs to ask limited questions about Plaintiff’s pain levels at various times including current pain levels, before and after significant treatment he has undergone; and symptoms Plaintiff has had since the accident. Dr. Triggs could not examine Plaintiff without asking these questions, because Plaintiff’s answers direct which body parts Dr. Triggs should focus on, and provide background on Plaintiff’s injuries.” (Motion p. 2.)
In Defendant’s reply, without citation to supporting evidence or authority, Defendant states: “Orthopedic surgeons focus on the bones and joints, while neurosurgeons are more concerned with the nervous system (spinal cord and nerves). While both exams are similar in form, orthopedic surgeons and neurosurgeons interpret findings through the lens of their respective fields. Orthopedic surgeons focus on resolving joint issues, whereas neurosurgeons prioritize identifying and resolving spinal issues.” (Reply p. 2.)
b. Plaintiff’s contentions
Plaintiff also argues that Defendant’s meet and confer efforts were inadequate.
3. Analysis
“Where plaintiff’s injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of plaintiff.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 8:1558.5, p. 8l-16.)
Defendant has not shown good cause for an additional examination by Dr. Triggs. Good cause requires more than an assertion that different specialists apply different lenses to their work. Lacking a properly supported explanation of how the examiners’ different areas of medical expertise may enable them to provide non-duplicative discoverable information, the Court denies Defendant’s motion.
C. Conclusion
The Court DENIES Defendant Marco Carreon’s motion for leave to conduct an additional physical examination of Plaintiff Art Payne.
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.
II. Defendant's motion to compel further responses to special interrogatories, set four
A. Legal standard
Code
of Civil Procedure section 2030.300 provides:
“(a) On receipt of a response to interrogatories, the
propounding party may move for an order compelling a further response if the
propounding party deems that any of the following apply:
“(1) An answer to a particular interrogatory is
evasive or incomplete.
“(2) An
exercise of the option to produce documents under Section 2030.230 is
unwarranted or the required specification of those documents is inadequate.
“(3) An objection to an interrogatory is without merit
or too general.
“(b) (1) A motion under subdivision (a) shall be
accompanied by a meet and confer declaration under Section 2016.040.
“(2) In lieu of a separate statement required under
the California Rules of Court, the court may allow the moving party to submit a
concise outline of the discovery request and each response in dispute.
“(c) Unless notice of this motion is given within 45
days of the service of the verified response, or any supplemental verified
response, or on or before any specific later date to which the propounding
party and the responding party have agreed in writing, the propounding party
waives any right to compel a further response to the interrogatories.
“(d) 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 a further
response to interrogatories, 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.
“(e) If a party then fails to obey an order compelling
further response to interrogatories, 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., §
2030.300.)
B. Discussion
Defendant served special interrogatories, set four, on November 11, 2024. Plaintiff served untimely responses on December 26, 2024, waiving any objections to the special interrogatories. (See Code Civ. Proc., § 2030.290, subd. (a).)
Special interrogatory, set four, number 75 asked: "Provide the name, address and telephone number of any and all non-expert witnesses YOU may call at the time of trial to give testimony concerning YOUR injuries, treatment and damages." Although Plaintiff had waived his objections, Plaintiff objected to the interrogatory. In addition, Plaintiff stated that he "intends to call friends, family and co-workers subject to their availability at the time of trial" and would "provide a list of witnesses within the Plaintiff’s Witness list closer to trial."
The Court grants Defendant's motion to compel Plaintiff's further responses to special interrogatory, set four, number 75. The Court orders Plaintiff to serve further responses consisting of any information previously withheld based on Plaintiff's stated objections, which Plaintiff has waived. In addition, the Court orders Plaintiff to serve further responses consisting of the names, addresses, and telephone numbers of friends, family members, and co-workers Plaintiff may call at trial to testify about Plaintiff's injuries, treatment, and damages. Plaintiff is to serve these further responses by April 10, 2025.
Defendant asks the Court to award $750.00 in sanctions. Code of Civil Procedure
section 2030.300, subdivision (d), authorizes the Court to impose a monetary
sanction “against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel a further response to interrogatories, 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. . . .”
Plaintiff did not make or oppose a motion to compel a further response to special interrogatories, set four. Therefore, sanctions are not available under Code of Civil
Procedure section 2030.300.
Other
statutes addressing misuse of the discovery process do not, by themselves,
authorize a sanctions award for this motion. In City of Los Angeles v.
Pricewaterhousecoopers, LLP (2024) 17 Cal.5th 46 (PwC), the Supreme
Court held: “It is already well-established that a court may not rely on [Code
of Civil Procedure] section 2023.030 to override the limitations prescribed by
any other applicable sanctions provision in the [Civil Discovery] Act. A court may invoke its independent authority
to impose sanctions under sections 2023.010 and 2023.030 only when confronted
with an unusual form of discovery abuse, or a pattern of abuse, not already
addressed by a relevant sanctions provision. And where it invokes that
authority, it is constrained by the long-settled rules generally governing the
imposition of discovery sanctions under the Act.” (PwC, supra, 17
Cal.5th at pp. 74-75.)
Code
of Civil Procedure section 2030.300, subdivision (d), limits the Court’s
authority to impose sanctions when (as here) the non-moving party does not
oppose a successful motion to compel further responses to interrogatories.
Because the statute addresses this issue, the Court will not invoke its
independent authority to impose sanctions under Code of Civil Procedure
sections 2023.010 and 2023.030. (See PwC, supra, 17 Cal.5th at
pp. 74-75.)
C. Conclusion
The Court GRANTS Defendant Marco Carreon’s motion to compel Plaintiff Art Payne's further responses to special interrogatories, set four. The Court orders Plaintiff Art Payne to serve further verified code-compliant responses to special interrogatories, set four, number 75 without objections by April 10, 2025. The Court denies Defendant Marco Carreon’s request for sanctions.
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.