Judge: Lisa R. Jaskol, Case: 22STCV28871, Date: 2025-02-07 Tentative Ruling
Case Number: 22STCV28871 Hearing Date: February 7, 2025 Dept: 28
Having considered the moving and late opposition papers, the Court rules as follows.
BACKGROUND
On September 2, 2022, Plaintiff Peter Delillo (“Plaintiff”) filed this action against Defendants Trevor Wilkerson, Brenden William Hester (“Hester”), Air Control Systems, Inc. (“Air Control”), North Shore SVCS, Jaquelyn Bedoya, and Does 1-50 for negligence.
On December 14, 2023, Air Control filed an answer. On March 1, 2024, Hester filed an answer.
On November 22, 2024, Air Control and Hester (“Moving Defendants”) filed a motion for leave to conduct Plaintiff’s physical examination in California. The motion was set for hearing on January 13, 2025. The Court continued the hearing to February 6, 2025. On January 27, 2025, Plaintiff filed a late opposition.
Trial is currently scheduled for July 24, 2025.
PARTIES’ REQUESTS
Moving Defendants ask the Court for leave to conduct Plaintiff’s physical examination in California.
Plaintiff asks the Court to deny the motion.
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:
“(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 August 13, 2024, Moving Defendants noticed Plaintiff’s physical examination by Ronald Kvitne, M.D. The examination was set for October 3, 2024. On October 3, 2024, Moving Defendants served an amended notice of Plaintiff’s physical examination with Dr. Kvitne, moving the examination to November 13, 2024. Plaintiff did not appear for the November 13, 2024 examination.
Plaintiff was not required to appear at the November 13, 2024 examination. Moving Defendants acknowledge that the place of examination is more than 75 mils from Plaintiff’s residence. (Motion p. 4.) Because a physical examination under Code of Civil Procedure section 2032.220 must be “conducted at a location within 75 miles of the residence of the examinee” (Code Civ. Proc., § 2032.220, subd. (a)(2)), Moving Defendants must pursue a physical examination under Code of Civil Procedure section 2032.310, which governs requests for examination to which Code of Civil Procedure section 2032.220 does not apply. As a result, Moving Defendants may not conduct Plaintiff’s physical examination unless they obtain leave of court based on a finding of good cause. (See Code Civ. Proc., §§ 2032.310, subd. (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”]; 2032.320, subd. (a) [“The court shall grant a motion for a physical . . . examination under Section 2032.320 only for good cause shown”].)
Moving Defendants contend that there is good cause to order Plaintiff to attend a physical examination in California because (1) Plaintiff has stated in discovery responses that he suffers from physical complaints which he attributes to the accident giving rise to the case, (2) Plaintiff is driving a recreational vehicle across the country and has no fixed residence, (3) it is unreasonable to require Moving Defendants to retain an out-of-state expert to conduct the examination and then travel to California to testify at trial, and (4) Moving Defendants have offered to pay Plaintiff’s reasonable expenses for his travel to California for the examination.
In opposition, Plaintiff argues that Moving Defendants have not shown good cause for Plaintiff to travel from Maine, where he lives, to Los Angeles for the examination. (See Code Civ. Proc., § 2032.320, subd. (e)(1).) According to Plaintiff, Moving Defendants should retain an expert whose office is located within 75 miles of Plaintiff’s residence.
Yet Plaintiff also states that “Plaintiff has agreed to fly to California, however, defense has made it difficult to know if they will pay for his travel.” (Opposition p. 2.)
In fact, Moving Defendants have stated that they will pay the following travel expenses: Plaintiff’s travel to and from the examination, reasonable accommodations the night before the examination, the day of the examination, and check-out the day after the examination, and travel to and from airport. (Fazel dec. ¶ 9.)
The Court finds good cause and grants the motion under Code of Civil Procedure section 2032.320 conditioned on Moving Defendants advancing the reasonable travel expenses and costs to which Moving Defendants have agreed.
CONCLUSION
The Court GRANTS the motion for leave to conduct Plaintiff Peter Delillo’s physical examination filed by Defendants Brenden William Hester and Air Control Systems, Inc. Ronald Kvitne, M.D., a board-certified orthopedist, will conduct the examination. The place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination are set forth in the Notice of Independent Medical Examination of Plaintiff with Dr. Ronald Kvitne served on August 13, 2024 (Exhibit 8 to the Declaration of Domineh Fazel). The examination will take place within 60 days from the date of the hearing on this motion, on a date and at a time to which counsel for Plaintiff Peter Delillo and counsel for Defendants Brenden William Hester and Air Control Systems, Inc. agree. The Court finds that there is good cause for the travel involved. The order is conditioned on Defendants Brenden William Hester and Air Control Systems, Inc. advancing the reasonable expenses and costs for Plaintiff Peter Delillo’s travel to the place of examination.
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.