Judge: Lisa R. Jaskol, Case: 22STCV07329, Date: 2023-08-31 Tentative Ruling

Case Number: 22STCV07329    Hearing Date: September 6, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

Plaintiff Margot Mandel (“Plaintiff”) alleges that on June 23, 2021, as she was walking her dog in front of the house owned by Defendants Steven Polard and Andrea Polard, Defendants’ dog got loose and bit Plaintiff’s dog. Plaintiff alleges she was injured while trying to separate the two dogs. 

On March 1, 2022, Plaintiff filed this action against Defendants Steven Polard, Andrea Polard, Karla Polard and Sophia Polard for negligence, gross negligence and strict liability. Plaintiff later amended the complaint to include Defendant Tristain Polard. 

On May 3, 2022, Plaintiff filed a First Amended Complaint removing the cause of action for gross negligence. On June 6, 2022, Defendants filed an answer. 

On July 11, 2023, the Court dismissed Karla Polard, Sophia Polard and Tristan Polard with prejudice at Plaintiff’s request. 

On August 9, 2023, Defendants Steven Polard and Andrea Polard (“Moving Defendants”) filed a motion to compel Plaintiff’s physical examination to be heard on September 6, 2023. On August 18, 2023, Plaintiff filed an opposition. On August 29, 2023, Moving Defendants filed a reply. 

Trial is currently scheduled for December 14, 2023. 

PARTIES’ REQUESTS 

Moving Defendants ask the Court to order Plaintiff to attend a physical examination with orthopedic surgeon Michael P. Weinstein, M.D., on October 5, 2023, at 11:00 a.m., at 360 San Miguel Drive, Suite 701, Newport Beach, CA 92660. 

Plaintiff asks the Court to deny the motion.

MOVING DEFENDANTS’ OBJECTION: Overruled

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.)           

DISCUSSION 

Plaintiff alleges that, as a result of the June 23, 2021 incident, she suffered injuries including severe multilevel central, lateral recess, and foraminal stenosis, severe radiculopathy, disc collapse at L4-5 and L5, S1, and “drop foot syndrome.”  Plaintiff has placed at issue injuries that an orthopedic surgeon may evaluate. 

On June 20, 2023, Moving Defendants timely noticed a physical examination, scheduled for July 26, 2023, with a doctor in Van Nuys.  On June 21, 2023, Moving Defendants served an amended notice stating Dr. Weinstein would conduct the examination at his office in Newport Beach on July 28, 2023.  The location is approximately 64 miles from Plaintiff’s residence. Plaintiff objected to the demand, arguing the location is too far for Plaintiff to travel. 

Plaintiff argues she will suffer severe pain, embarrassment and discomfort if required to travel approximately 60 miles for the examination by Dr. Weinstein. Plaintiff also states that she will be required to miss an entire day of work to travel to and attend the examination. 

The Court grants the motion to compel.  Moving Defendants have a statutory right to conduct Plaintiff’s physical examination at a location within 75 miles of her residence upon compliance with the statutory notice requirements. Moving Defendants have complied with these requirements. 

CONCLUSION 

The Court GRANTS the motion of Defendants Steven Polard and Andrea Polard to compel Plaintiff Margot Mandel to attend a physical examination. Plaintiff is ordered to appear for a physical examination with orthopedic surgeon Michael P. Weinstein, M.D., on October 5, 2023, at 11:00 a.m., at 360 San Miguel Drive, Suite 701, Newport Beach, CA 92660. 

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.