SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Kaitlyn Adams (“Plaintiff”) filed this action against Defendant Kate Lebenzon (“Defendant”) for damages arising from a motor vehicle accident. Trial is currently set for February 29, 2024.  

Defendant, at this time, moves for an order compelling Plaintiff to submit to an independent medical examination (“IME”). Plaintiff opposes the motion on the grounds that the examination is further than 75 miles from her home.   

  

II. Motion to Compel IME 

Defendant seeks an order that Plaintiff appear for an IME with Luke Macyszyn, M.D., M.A (“Dr. Macyszyn”). at 3501 Jamboree Road, Suite 1250, Newport Beach, CA 92660 to be conducted via electronic video call.  Defendant asserts Plaintiff currently resides in New Jersey, and there is no reason for Plaintiff to not attend a virtual examination with Defendant’s expert, who is located in California. Defendant avers Plaintiff has placed orthopedic injuries in controversy, because she testified that a result of the incident, she experienced neck and shoulder pain. Defendant had offered to pay Plaintiff’s reasonable travel costs should she agree to attend an in-person IME. However, because Plaintiff refused this offer, Defendant opted to schedule an IME to be conducted through internet video call to accommodate Plaintiff.  

In opposition, Plaintiff contends there is no good cause for Plaintiff to travel for an IME over 75 miles from her residence, and that discovery cut-off was on May 10, 2023.    

 

CCP § 2032.220 states: 

 

(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. 

 

Furthermore, CCP § 2032.320(e) provides: 

 

(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. 

 

Here, there is no physical travel involved because Defendant has elected for and is seeking a virtual IME. Plaintiff does not dispute Defendant is entitled to an IME, which Plaintiff here may attend remotely from her residence. Thus, there is good cause to grant the motion to compel IME for a virtual examination. The Court notes that Defendant appears to make arguments concerning an in-person IME, and the conclusion of the moving papers requests Plaintiff to appear at Dr. Macyszyn’s office. However, the Notice of Motion specifically seeks an order for a remote IME only, and therefore the Court will not consider arguments or requests outside the limits of the Notice. In terms of discovery cut-off, the Court granted Defendant’s ex parte application to continue trial and discovery-cut off on May 17, 2023. (Min. Order, May 17, 2023.) Trial was continued to February 29, 2024. (Ibid.) The purpose of the ex parte application pertained to Plaintiff’s IME. CCP section 2024.020 provides that any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. 

Based on the foregoing, Defendant’s motion to compel IME is GRANTED, and discovery is re-opened for the limited purpose of conducting Plaintiff’s virtual IME with Dr. Macyszyn. Considering the impending trial date, the parties are ordered to meet and confer on a mutually agreeable date in order for Plaintiff’s IME to proceed within 20 days. If Plaintiff does not meaningfully participate in the meet and confer discussion, Defendant may unilaterally notice Plaintiff’s remote IME with Dr. Macyszyn, and Plaintiff is ordered to appear for the IME on a date and time at Defendant’s election. However, Defendant must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service). 

Lastly, Defendant’s request for monetary sanctions was not specified in the Notice and is therefore denied. (CCP § 2023.040.)