Judge: Michael E. Whitaker, Case: 20STCV14145, Date: 2022-10-13 Tentative Ruling

Case Number: 20STCV14145    Hearing Date: October 13, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

            Defendant James Michael Goffred (Defendant) moves to compel Plaintiff Anthony Hebert (Plaintiff) to submit to an independent medical examination with Amandeep Bhalla M.D, an orthopedic surgeon, whose location in the City of Long Beach, is greater than 75 miles from the current residence of Plaintiff which is in the State of Louisiana.  Plaintiff has not filed an opposition to the motion.

ANALYSIS

When the physical condition of the plaintiff is in controversy in a personal injury case, a defendant may obtain a physical examination of the plaintiff.  (Code Civ. Proc., §§ 2032.020, 2032.220.)  A defendant is permitted to one physical examination of the plaintiff in a personal injury action on demand. (Code Civ. Proc., § 2032.220, subd. (a).) 

Code of Civil Procedure section 2032.320, subdivision (e) states: “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 . . . [and] (2) [t]he 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.”

Here, Defendant initially noticed the independent medical examination of Plaintiff to occur on March 11, 2022, in Los Angeles. (See Declaration of Ravi K. Lally, ¶3). On February 22, 2022, Plaintiff’s counsel advised that Plaintiff had moved to Louisiana, and thus Plaintiff objected to the medical examination on the basis that the location of the examination was greater than 75 miles from Plaintiff’s residence. (See Ibid.)

Thereafter, Defendant served a second notice of independent medical examination of Plaintiff with Amandeep Bhalla, M.D., to take place in Long Beach on November 8, 2022. (See Declaration of Ravi K. Lally, ¶9; Exhibit D.)

The Court notes Defendant filed and served the instant motion on September 12, 2022 – approximately two months before Plaintiff is noticed to appear for the physical examination on November 8, 2022. As such, the Court finds Defendant’s motion to be premature as it is uncertain at this time whether or not Plaintiff will appear for the physical examination scheduled on November 8, 2022.

Accordingly, the Court denies without prejudice Defendant’s motion to compel the physical examination of Plaintiff as procedurally defective.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.