Judge: Olivia Rosales, Case: BC643011, Date: 2022-07-27 Tentative Ruling

Case Number: BC643011    Hearing Date: July 27, 2022    Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.:  BC643011

HEARING:  7/27/22 @ 1:30 PM

JUDGE: OLIVIA ROSALES

#Add-On

TENTATIVE RULING (REVISED)

Defendant Command Performance Constructors, Inc.’s motion for an order compelling Plaintiff, Siakimativa Simeta to appear for his independent medical examination is GRANTED in part and DENIED in part.  Plaintiff Simeta is ordered to appear for an IME.  However, the request to compel Plaintiff to conduct the IME in the United States is DENIED.

Opposing Party to give NOTICE.

Defendant Command Performance Constructors, Inc. (“CPC”) moves for an order compelling plaintiff to attend his five independent medical exams, noticed for August 17-18, 22-24, 2022, in California, pursuant to CCP §§ 2032.310, 2032.320(a), (d), and (e).

Defendant’s Objection No. 3 is sustained and Plaintiff should share the Reply with Defendant.  Objection Nos. 1-2 are overruled.  Objection No. 4 is overruled because it concerns a separate order, and separate procedural rules govern objections to orders.

“(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.  (b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.”  (CCP § 2032.220.)

“(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.  (CCP § 2032.310.)

“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown…. d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.  (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.”  (CCP § 2032.320(a), (d), (e).)

After filing the above lawsuit in Los Angeles Superior Court, plaintiff thereafter relocated to the foreign country of Samoa.  Plaintiff has refused Defendant’s offers to fly Plaintiff to California where his travel and lodging expenses
would be covered so that he could submit himself to the IMEs.  

In opposition, Plaintiff claims CCP § 2032.220(a) requires that defense medical exams be conducted within 75 miles of Plaintiff’s residence.  However, CCP § 2032.320 allows examinations to take place beyond the 75-mile radius for “good cause shown.”

The court has reviewed the immigration documents relating to Plaintiff’s immigration status filed ex parte and later shared with Defendant. The Court does not find that Defendant has presented good cause to mandate an IME in the United States when Plaintiff cannot re-enter the United States due to federal immigration laws. (Ev. Code § 351.2(a) – “In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.”)

Although Defendant could not find a doctor that would entertain the idea of traveling to Samoa (Haigh Decl., ¶10), Defendant has not detailed its efforts in locating a doctor in Samoa or areas that are closer to Samoa. Further, Plaintiff is partially quadriplegic and will have a difficult time during the 13-hour flight, which may endanger his health.

Accordingly, the motion is GRANTED in part and DENIED in part.  Plaintiff Simeta is ordered to appear for an IME.  However, the request to compel Plaintiff to conduct the IME in the United States is DENIED.