SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff, Rocio Campos (“Plaintiff”) filed this action against Defendants Jose F Escobar Martinez d/b/a LAF Trucking and Jose F Escobar Martinez for damages arising out of an automobile accident.   

At this time, Defendants move to compel Plaintiff to appear for a physical examination with Defendants’ expert, Paul Kaloostian, M.D., neurosurgeon, to take place at 42283 10th Street West, Suite 107, Lancaster, CA 93534, on a date and time certain within 30 days of the Order of this Court. Defendants also request sanctions. Plaintiff opposes the motion and also requests sanctions.  

 

2. Legal Standard 

A. Procedural Requirements 

As an initial matter, Plaintiff argues that the Court should deny the Defendants’ motion because Defendants did not file a separate statement. Here, Plaintiff appears to have responded to the demand for physical examination and made objections. (Opp. Exh. D.) A motion for “medical examination over objection” must be accompanied by a separate statement. (CRC 3.1345(a)(6).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c).)  

No separate statement was filed. Therefore, the Court finds Defendants have not satisfied the requirements of CRC 3.1345(a). However, Plaintiff does not identify any prejudice caused by the lack of a separate statement. Regardless, the lack of separate statement is no longer relevant, because Plaintiff’s physical examination with Dr. Kaloostian went forward on July 7, 2023. (Opp. Decl Movsesian, ¶ 9; Exh. E.) Therefore, the motion to compel physical examination is moot. 

   

B. Motion to Compel Physical Examination  

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. 

CCP § 2032.250 provides that, when a plaintiff fails to respond or refuses submit to a demand, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam.   

Here, Plaintiff provides that Plaintiff responded to the demand, and that Plaintiff submitted to the request for physical examination. As previously stated, the motion to compel physical examination is now moot. The only issue remaining are the sanctions requested by the parties. 

 

3. Sanctions 

Defendants seeks sanctions pursuant to CCP § 2032.250. Plaintiff also seeks sanctions in connection with opposing this motion. CCP § 2032.250(b) requires the court to impose sanctions in connection with a motion to compel physical exam unless the court finds Plaintiff acted with substantial justification or other circumstances make imposition of sanctions unjust.   

Here, Defendants provide that Defendants first noticed Plaintiff’s physical exam on May 10, 2022, for the agreed upon examination date of July 12, 2022 with Dr. Kaloostian. On June 3, 2022, Plaintiff served a response to the noticed exam, in which Plaintiff agreed to appear, subject to objections related to the scope of the examination. On July 9, 2022, three days before the scheduled exam, Plaintiff’s counsel emailed defense counsel that Plaintiff was unable to attend the July 12, 2022 examination. Plaintiff’s counsel provided Plaintiff’s availability for any date between July 15 to August 5, but Dr. Kaloostian was not available until August 24, 2022. Thereafter, the parties conferred on dates, and defense counsel noticed the examination for the agreed upon date of September 23, 2022. Plaintiff served the same response and objections, that Plaintiff would appear subject to the scope objections. On September 16, 2022, Plaintiff’s counsel cancelled the examination and proposed further dates. Defense counsel then noticed the examination for a third time for December 26, 2022, and Plaintiff’s counsel objected that the exam was unilaterally set and that Plaintiff’s counsel was not available. The parties again met and conferred on dates, and defense counsel avers that Plaintiff’s counsel did not provide if Plaintiff would appear. Therefore, defense counsel emailed Plaintiff’s counsel that the December 26, 2022 would not occur.  

In opposition, Plaintiff first argues this motion fails to provide sufficient notice and that the notice is vague. “A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”  (CRC Rule 3.1110(a).  See also CCP §1010.) Generally, courts may only consider issues or grounds specified in the notice of motion or supporting documents incorporated by reference in the notice. (Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1125; Geary St., L.P. v. Sup. Ct. (1990) 219 Cal.App.3d 1186, 1199-1200;   People v. Am. Sur. Ins. Co. (1999) 75 Cal. App. 4th 719, 726;  Carrasco v. Craft (1985) 164 Cal. App. 3d 796, 808;  Taliaferro v. Riddle (1959) 167 Cal.App.2d 567, 570;  Traders' Credit Corp. v. Sup. Ct. (1931) 111 Cal.App. 663, 665.) Defendants’ motion, filed on January 10, 2023, provides notice that Defendants are seeking to move this Court for an order compelling Plaintiff to appear for a physical examination within 30 days, and seeks sanctions in the amount of $1,523.30. Additionally, the notice provides that the “motion is based on this notice, the memorandum of points and authorities, the declaration of Jesse D. Marr, and all pleadings on file with the Court.” At the time of the filing of this instant motion, Plaintiff’s examination had yet to move forward. Defendants need not identify the dates of when Defendants noticed Plaintiff’s examination in the notice, as this information is clearly contained in the memorandum of points and authorities. Furthermore, the  legal authority is incorporated by reference in the notice, and Plaintiff was able to oppose this motion on the merits. Therefore, the Court is not persuaded by Plaintiff’s argument that the notice of this motion was so vague that it violated Plaintiff’s right to due process.  

In terms of incurring a cancellation fee, Plaintiff contends she cancelled at least three business days before the noticed examinations, which is in line with Dr. Kaloostian’s requirement that cancellations must be at minimum three business days before the scheduled examination. Additionally, Plaintiff argues that Defendants do not set forth the manner in which the $1,523.30 is calculated, and Plaintiff requests $1,500 in sanctions in turn for Defendants not withdrawing this motion. 

In this case, the Court agrees that Defendants’ request for $1,523.30 in sanctions is not supported by defense counsel’s declaration, because defense counsel does not provide its hourly rate, the time expended in bringing this motion, and any other information bearing upon the calculation of costs in the declaration. Defendants only provide in the memorandum that Dr. Kaloostian’s cancellation fee was $700, and that Defendants incurred a $61.65 filing fee. Although there is some merit in Defendants’ request for sanctions, the Court declines to award unitemized and uncalculated monetary sanctions.  

As to Plaintiff’s request for sanctions, the Court notes that Plaintiff does not explain the meaning of “something unexpected arose” which prevented Plaintiff from attending the examinations Plaintiff had previously agreed to attend, scheduled for July 12, 2022 and then on September 23, 2022. Defendants also provided that Plaintiff’s counsel canceling the July 12, 2022 examination on July 9, 2022 is actually one business day’s notice due to the weekend.  Additionally, there is no explanation regarding any meet and confers efforts between the parties within the 7 month timeframe of the last cancelled examination of December 26, 2022 to the date Plaintiff finally appeared for her examination on July 7, 2023. For the reason that Plaintiff has not provided sufficient explanation for continually cancelling the examinations she agreed to appear for, and the amount of time that has passed before Plaintiff submitted to a physical exam, the Court also declines to award any sanctions to Plaintiff for opposing this motion.  

Dated this 8th day of August, 2023