Judge Mark E. Windham, Case Number: 22STLC00862, Date: 2023-08-07 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC00862, Date: 2023-08-07 Tentative Ruling

Case Number: 22STLC00862 Hearing Date: August 7, 2023 Dept: 26

State Farm v. Dona, et al.

MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION;

REQUEST FOR TERMINATING, MONETARY AND/OR EVIDENTIARY SANCTIONS

(CCP §§ 2032.310)

ANALYSIS / TENTATIVE RULING:

Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Compel Attendance at Medical Examination is DENIED. PLAINTIFF AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $888.25 TO DEFENSE COUNSEL WITHIN 20 DAYS OF THIS ORDER.

THE TRIAL DATE OF AUGUST 9, 2023 IS VACATED. ORDER TO SHOW CAUSE REGARDING STATUS OF ARBITRATION PROCEEDING IS SET FOR DECEMBER 11, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Discussion

On February 9, 2023, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed this action by a Petition for Case Number for Protective Order pursuant to Cal. Insurance Code section 11580.2. Due to clerical error, the action was set for trial as if the action were based on a complaint. Accordingly, the Court vacates the August 9, 2023 trial date.

On July 14, 2023, Plaintiff filed the instant Motion to Compel Attendance at Medical Examination. Defendant filed an opposition on July 25, 2023.

Discussion

Plaintiff moves to compel a second medical examination of Defendant pursuant to Code of Civil Procedure section 2032.310, which states in relevant part:

(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.) The Motion is supported by a declaration demonstrating a meet and confer effort. (Motion, Kandarian-Stein Decl., ¶¶14-15 and Exh. D.) Code of Civil Procedure section 2032.020 allows the Court to order a medical examination “in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2023.020, subd. (a).) As Plaintiff points out, “in controversy” means the specific injury or condition is the subject of the litigation. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

Plaintiff argues that Defendant’s allegations and discovery responses put his mental condition in controversy. However, the Motion cites no pleading by Defendant regarding his neurological injuries. While Defendant does mention these injuries in his discovery responses, this does not automatically put them in controversy. (Motion, Kandarian-Stein Decl., Exh. A at Response Nos. 6.2 and 6.3.) Plaintiff cites Reuter v. Superior Court (1979) 93 Cal.App.3d 332, which points to a case where the defendant put his health in controversy by admitting at deposition that he had vision problems. (Reuter v. Superior Court (1979) 93 Cal.App.3d 332 [citing Harabedian v. Superior Court In and For Los Angeles County (1961) 195 Cal.App.2d 26, 31].) Defendant’s vision was relevant to the question of whether he had been negligently entrusted with a motor vehicle by his father, as the plaintiff claimed. (Harabedian, supra, 195 Cal.App.2d at 31.) Here, however, although Defendant mentioned his neurological injuries in discovery responses, Plaintiff does not show that they are relevant to the claims for damages made by Defendant. Also, the opposition argues that those injuries were mild concussion symptoms that resolved in early 2020 following two examinations. (Opp., Khorshidi Decl., Exhs. A-B.) Defendant denies that he is claiming any current or future treatment with respect to the neurological injuries. (Opp., p. 4:9-13.) Therefore, Plaintiff has not shown that Defendant has put his mental condition at issue in this action.

In addition to showing that Defendant’s neurological health is in controversy, which it has not done, Plaintiff must show that there is good cause for the medical examination order. (Code Civ. Proc., § 2032.320, subd. (a).) Good cause is shown by specific facts that the inquiry is relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) In light of the finding that Defendant’s mental condition is not in controversy, the Court also finds that there is no good cause for an order compelling him to sit for a second medical examination.

Defendant requests sanctions of $2,188.45 based on three hours of attorney time billed at $650.00, plus $238.45 filing costs. (Opp., Khorshidi Decl., ¶¶5-6.) The sanctions award is appropriate under Code of Civil Procedure section 2023.240, subdivision (c) and has been properly noticed. However, the amount is excessive. Under a lodestar calculation, sanctions are awarded to Defendant in the amount of $888.45. (Ibid.)

Conclusion

THE TRIAL DATE OF AUGUST 9, 2023 IS VACATED. ORDER TO SHOW CAUSE REGARDING STATUS OF ARBITRATION PROCEEDING IS SET FOR DECEMBER 11, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notic