Judge Lynne M. Hobbs, Case Number: 23STCV28487, Date: 2024-04-23 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV28487, Date: 2024-04-23 Tentative Ruling

Case Number: 23STCV28487 Hearing Date: April 23, 2024 Dept: 30

JAMES RIVER INSURANCE COMPANY vs JOHN DAVID MCMAHON

TENTATIVE

Petitioner James River Insurance Company’s motions to compel deposition and independent medical examination are TAKEN OFF CALENDAR.

Legal Standard

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

CCP section¿2025.450(a) provides:¿“If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450(a).)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿ (Id., § 2025.450(b).)

“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.” (Code Civ. Proc., § 2032.220.) Pursuant to CCP § 2032.220(b), this demand may be made “without leave of court.”

California Code of Civil procedure section 2032.250, subdivision (a) states: “If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff's response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

Subdivision (b) of Section 2032.250 states: “The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel 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.”

Discussion

On November 20, 2023, Petitioner filed a petition to open an uninsured motorist discovery case. Since this is a petition, Petitioner was required to serve it on Claimant in the manner required by CCP section 1290.4. (See Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1289 (stating the statutory scheme for arbitration provided by CCP sections 1280 et seq. encompasses arbitration compelled by statute, and specifically, arbitration under Insurance Code section 11580.2).) Under CCP section 1290.4, a copy of the petition and a written notice of the time and place of the hearing and any other papers upon which the petition is based must be served in the manner provided in the arbitration agreement for the service of such petition and notice. (Code Civ. Proc., § 1290.4(a).) If the arbitration agreement does not provide the manner for service, then CCP section 1290.4 requires that service be made in the manner provided by law for the service of summons in an action. (Id., § 1290.4(b).)

Petitioner filed this petition under Insurance Code section 11580.2, which does not provide any manner for service. Since Insurance Code section 11580.2 does not identify any manner for service, Petitioner was required by CCP section 1290.4(b) to serve the petition and the discovery motion on Claimant in the manner provided for the service of summons. After Claimant has been served in the manner provided for the service of summons, then CCP section 1290.4 permits Petitioner to serve any further motions by mail on Claimant or Claimant attorney, as set forth in CCP sections 1010 to 1020. (Code Civ. Proc., § 1290.4(c).)

Here, Petitioner did not attach a proof of service to its petition indicating the petition and motions at issue were served on Claimant by any means. Petitioner has thus failed to demonstrate that it served the petition and discovery motion in the manner of a summons. As Petitioner has not served the petition on Claimant in the manner provided by law for the service of summons, the Court cannot hear this motion because the Court does not have jurisdiction over Claimant at this time.

Conclusion

Accordingly, Petitioner James River Insurance Company’s motions to compel deposition and independent medical examination are TAKEN OFF CALENDAR.