Judge: Lisa R. Jaskol, Case: 21STCV32712, Date: 2025-03-21 Tentative Ruling

Case Number: 21STCV32712    Hearing Date: March 21, 2025    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On September 2, 2021, Plaintiffs Sarah Lansing (“Lansing”) and Joe Garcia (“Garcia”) filed this action against Defendants Shira Danielle Barlas (“Defendant”) and Does 1-50 for motor vehicle tort and general negligence. 

On July 20, 2023, Defendant filed an answer. 

On October 11, 2023, Defendant filed a cross-complaint against Cross-Defendants Garcia and Roes 1-50 for declaratory relief and comparative indemnity.  On January 27, 2025, the clerk entered Garcia’s default on the cross-complaint. 

On December 17, 2024, Defendant filed (1) a motion to compel Lansing’s orthopedic examination and (2) a motion to compel Garcia’s physical examination.  The motions were set for hearing on February 5, 2025.  Lansing and Garcia did not file oppositions.  The Court continued the hearings to March 21, 2025. 

Trial is currently scheduled for March 24, 2026. 

PARTY’S REQUESTS 

Defendant asks the Court to compel Lansing’s orthopedic examination and Garcia’s physical examination. 

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 2032.230 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.) 

DISCUSSION 

A.   Defendant’s motion to compel Lansing’s orthopedic examination 

On August 27, 2024, Defendant noticed Lansing’s orthopedic examination.  Lansing failed to appear for the noticed examination.  On November 21, 2024, Defendant again noticed Lansing’s orthopedic examination.  Lansing again failed to appear.  Defendant noticed both examinations after meet-and-and-confer discussions and after Lansing confirmed that she would appear for the examinations.  Defendant has not yet conducted any physical examination of Lansing. 

The Court grants the motion under Code of Civil Procedure section 2032.240, subdivision (b) and orders Lansing to appear for an orthopedic examination within 30 days. 

B.   Defendant’s motion to compel Garcia’s physical examination 

On August 14, 2024, Defendant noticed Garcia’s physical examination after meet-and-confer discussions and after Garcia confirmed that he would appear for the exam.  Garcia failed to appear for the noticed examination.  Defendant has not yet conducted any physical examination of Garcia. 

The Court grants the motion under Code of Civil Procedure section 2032.240, subdivision (b) and orders Garcia to appear for a physical examination within 30 days. 

CONCLUSION 

The Court GRANTS Defendant Shira Danielle Barlas’s motion to compel Plaintiff Sarah Lansing to attend an orthopedic examination.  The Court orders Plaintiff Sarah Lansing to appear and participate in an orthopedic examination within 30 day of the hearing on this motion. 

The Court GRANTS Defendant Shira Danielle Barlas’s motion to compel Plaintiff Joe Garcia to attend a physical examination.  The Court orders Plaintiff Joe Garcia to appear and participate in a physical examination within 30 day of the hearing on this motion. 

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.