Judge: Michael E. Whitaker, Case: 23SMCV04461, Date: 2025-05-29 Tentative Ruling

Case Number: 23SMCV04461    Hearing Date: May 29, 2025    Dept: 207

TENTATIVE RULING

MOTIONS

This case stems from allegations that Plaintiff was assaulted/battered by a proctor during an exam. 

On September 21, 2023, Plaintiff Sara Kulaski (“Plaintiff”) filed suit against Pearson Vue Testing Center, LLC and Irina Svistelina (“Defendants”) alleging two causes of action for (1) negligence and (2) battery.

Defendants now move to compel Plaintiff’s (1) deposition and (2) physical exam.  Plaintiff opposes both motions and Defendants reply.

ANALYSIS

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

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

Here, on January 17, 2025 Defendants served Plaintiff with a Notice of Deposition, and on February 11, 2025 Defendants served Plaintiff with a Demand for an Independent Medical Examination (“IME”) to be held in Los Angeles on March 3, 2025 and on March 24, 2025, respectively.  (See Exs. 1 to Marshall Declarations.) 

On February 6, 2025, Plaintiff served objections to the Notice of Deposition and on February 18, 2025, Plaintiff served objections to the Demand for IME, objecting to both being held in person in Los Angeles on the grounds that Plaintiff had relocated to Illinois since filing the lawsuit.  (Exs. 2.)  Plaintiff asserts that Code of Civil Procedure sections 2032.220 and 2025.250, which provide that a deposition and IME, respectively, must be taken within 75 miles of Plaintiff’s residence or within the county where the action is pending and within 150 miles of her residence.

The parties attended in Informal Discovery Conference (“IDC”) on March 10, 2025.  (Ex. 3.) 

Defendants now move to compel Plaintiff’s in-person Deposition and IME in Los Angeles, arguing that Plaintiff did not relocate to Illinois after filing suit; but rather splits her time between Los Angeles and Chicago, and is strategically claiming residence in Illinois to obstruct discovery in the action.

In opposition, Plaintiff argues that (1) the motions are untimely and (2) although Plaintiff’s husband splits his time between Los Angeles and Chicago, and although Plaintiff originally intended her trip to Chicago in July 2023 to be temporary, the trip was hard on her physically, due to her injuries, and therefore the relocation became permanent. 

Regarding Plaintiff’s first argument that the motions are untimely, Plaintiff premises this argument on the fact that after Defendants retained new counsel, the parties informally agreed to move to compel by April 21.  Yet, Defendants did not file their motions to compel until April 22.  In reply, Defendants point out that there is no statutory time limit to bring a motion to compel a deposition or IME, except for the overall discovery cut-off dates, dictated by the initial trial date.  As such, the Court finds that there is no time bar to Defendants’ motions.

As for the second argument, Plaintiff advances the Declaration of Sara Kulaski, which provides:

2. On or about April 28, 2023, I went to Defendants Professional Center located in Culver City to take a board-certified exam for a national license for acupuncture. During the exam, Defendant Irina Svistelina, an employee of Defendant Pearson, injured me when she grabbed me, twisting my back and aggravating my pre-existing spinal disc injury. On or about May 1, 2023, I saw my medical provider for a consultation regarding my incident related injuries and was prescribed muscle relaxer medications, anti-inflammatory steroids, and physical therapy.

3. In July 2023, I traveled from Los Angeles, California to Chicago, Illinois to assist my father, who was suffering from a serious illness. Although I initially planned to return to California after caring for him, I began experiencing significant health issues, including severe back pain, as well as pain, numbness, and tingling in my leg from my knees to my feet.

4. Due to these health issues, I decided to remain/relocate to Chicago and begin medical treatment there. In August 2024, I began a physical therapy regimen under the care and supervision of licensed medical professionals. Since that time, I have been attending physical therapy sessions twice a week. These sessions include exercises, stretching, and hands-on therapy techniques to strengthen the muscles around my spine, improve flexibility, and relieve back pain.

5. My ability to travel has been severely affected by my condition. Sitting for long periods of time, walking long distances, and lifting all of which are typically involved in air or overland travel exacerbate my symptoms. I am physically unable to tolerate the discomfort and risks associated with travel at this time.

6. I am still undergoing treatment and continue to follow my physical therapist’s medical advice and recommendations.  I recently had a checkup with my physical medicine doctor regarding my ongoing symptoms, which include persistent back pain and related limitations.

7. I do in fact consider myself to be a resident of Chicago and have no intention of returning to California at this time. While my website previously indicated that I performed work in both California and Chicago, that information reflected my original intention to return to California. Since establishing permanent residency in Chicago, and deciding not to return to California, I have updated my website to reflect that I no longer actively work in Los Angeles, nor do I maintain any office there.

8. My husband resides in Chicago at least 50% of the time and travels back to our formerly shared residence in Los Angeles, California only for work when needed.  However, I have not lived there since relocating to Chicago in July 2023.

9. I am willing to participate in the IME in Chicago where I reside. I am not refusing to be attend, but am physically unable to travel to California due to my medical condition. Likewise, I am willing to I am willing to participate in a deposition remotely, via video conference or in Chicago where I reside. For the same reason, I am not refusing to be deposed, but am physically unable to travel for the deposition to take place there.

(Kulaski Decl. ¶¶ 2-9.)

In Reply, Defendants argue that Plaintiff did not provide the Court any medical records or residency documents substantiating her declaration.  Subsequent to the reply, Plaintiff provided a supplemental declaration, attached to which is a doctor’s note, a lease agreement in Illinois, and an insurance card demonstrating Plaintiff’s Illinois residency. 

The Court does not generally consider evidence offered on (or after) reply, as it deprives the opposing party of a fair opportunity to respond.  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.) 

The Court does not find the sur-reply evidence necessary in any event, as Plaintiff’s original declaration was sufficient to demonstrate that Plaintiff had permanently relocated to Illinois prior to being served with the Notice of Deposition or Notice of IME.  As such, the code requires that the Deposition and IME be conducted within 75 miles of Plaintiff’s residence.

CONCLUSION AND ORDER

Because the Court finds that Plaintiff relocated to Illinois after filing suit but before being served with the Notice of Deposition and Notice of IME, the Court denies Defendants’ motion to compel Plaintiff’s deposition and IME in the County of Los Angeles. 

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  May 29, 2025                                                         ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court