Judge: Serena R. Murillo, Case: 20STCV08680, Date: 2022-12-15 Tentative Ruling

Case Number: 20STCV08680    Hearing Date: December 15, 2022    Dept: 29

TENTATIVE

21STCV08680 Mary Katharine Thomas v. Taylor Elizabeth Petty

Motion to Compel a Second Medical Exam of Plaintiff filed by Defendants Taylor Elizabeth Petty and Guy Petty is DENIED without prejudice.

Background

              This action arises from a motor vehicle accident that occurred on July 27, 2020.

              On March 4, 2021, Plaintiff Mary Katharine Thomas (“Plaintiff”) initiated this action against Defendant Taylor Elizabeth Petty, alleging the sole cause of action for negligence.

              On March 15, 2022, this action was consolidated with case no. 21STCV34351, which was brought by Plaintiff Margaret Weissman against Defendants Taylor Elizabeth Petty and Guy Petty, because it involved the same motor vehicle accident.

              On May 31, 2022, Defendants Taylor Elizabeth Petty and Guy Petty (collectively, “Defendants”) filed the instant motion to compel a second medical examination of Plaintiff for orthopedic issues. Plaintiff filed her opposition on December 2, 2022. On December 7, 2022, Defendants filed their reply papers.  

Legal Standard

              In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc. § 2032.220 (a).) A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code Civ. Proc. § 2032.220 (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code Civ. Proc. § 2032.220 (d)).  

              “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. (Code of Civ. Proc., § 2032.310(a).) A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination, and shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2032.310(b).) The Court shall grant the motion only for good cause shown.  (Code Civ. Proc., § 2032.310(a).)

Discussion

              As a preliminary matter, it is noted that the instant motion is defective for the several reasons. First, Defendants contend that it properly requested Plaintiff to submit to a second medical examination pursuant to Code of Civil Procedure § 2032.220(c). (Reply at pg. 2.) Upon review of the exhibits submitted in the moving papers, it shows that, on March 23, 2022 and March 31, 2022, Defendants’ counsel requested Plaintiff’s counsel to stipulate to an independent medical examination for the orthopedic and neurological issues, but Plaintiff’s counsel refused to stipulate to two medical examination. (Elder Decl. ¶ 11, Exh. B.) At this point, Defendants did not make a formal request that complied with Code of Civil Procedure § 2032.220(c). Then in subsequent email conversations, Plaintiff agreed to a neurological medical examination on April 20, 2022, but when asked to schedule a second medical examination for orthopedic issues, Plaintiff refused. (Elder Decl. ¶ 12, Exh. C.) However, while Defendants proposed various dates to hold this second medical examination in the April 21, 2022 email correspondence, the request did not specify the “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,” as required under Code of Civil Procedure § 2032.220(c). Lastly, in the letter dated May 16, 2022, Defendants did specify the person who would performing the examination and the scope and nature of the examination, but the letter fails to address the remaining statutory requirements. (Elder Decl. ¶ 13, Exh. D.) Consequently, there is not a demand for which the Court to compel compliance of.

              Second, even assuming that the second request for medical examination complied with Code of Civil Procedure § 2032.220(c) and it was objected to, Defendants have failed to include a separate statement as required under California Rules of Court, Rule 3.1345(a)(6). Third, Defendants have failed to meet and confer in compliance with Code of Civil Procedure § 20160.040. While Defendant sent a meet and confer letter on May 16, 2022, Defendant’s counsel acknowledges that Plaintiff’s counsel did not respond. (Elder Decl. ¶ 13, Exh. D.) There is no indication that Defendants’ counsel attempted to follow up on his letter. The mere sending of a letter does not establish a good faith attempt to meet and confer. While there may be good cause in compelling a second medical examination, these procedural defects cannot be overlooked.

              Accordingly, because of these procedural defects, the Court denies Defendants’ motion.

Conclusion

              Based on the foregoing, the Court DENIES Defendants’ motion to compel a second medical examination of Plaintiff without prejudice.

Moving party is ordered to give notice.