Judge: Serena R. Murillo, Case: 20STCV44265, Date: 2022-12-15 Tentative Ruling

Case Number: 20STCV44265    Hearing Date: December 15, 2022    Dept: 29

TENTATIVE

20STCV44265 James Howard Arnold, et al. v. Home Depot Store Support, Inc., et al.

Motion for Leave to Conduct Medical Examination of Plaintiff James Howard Arnold filed by Defendant Home Depot U.S.A. Inc. is DENIED.

Background

              This action arises from an injury that occurred on Defendants’ premises.

              On November 18, 2020, Plaintiffs James Howard Arnold and Lenette Jonel Arnold (collectively, “Plaintiffs”) initiated this action against Defendants Home Depot Store Support, Inc. and Home Depot U.S.A., Inc., alleging the following causes of action: (1) premises liability; (2) general negligence; and (3) loss of consortium.

              On May 5, 2022, the Court continued trial and extended only the expert designation related deadline and no other discovery and motion cut-off dates. Thus, because prior to this continuance, trial fell on May 18, 2022, and the discovery motion cut-off date was May 3, 2022. 

              On November 21, 2022, Defendant Home Depot U.S.A., Inc. (hereinafter, “Movant”) filed the instant motion for leave to conduct the medical examination of Plaintiff James Howard Arnold. Plaintiffs oppose. 

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 following reasons. First, Movant has failed to include a separate statement as required under California Rules of Court, Rule 3.1345(a)(6). And second, the pertinent discovery related cut-off dates were not extended when the Court continued trial in this action on May 5, 2022. (See May 5, 2022 Minute Order at pg. 1.) While Movant served its first request for Plaintiff James Howard Arnold’s medical examination on April 8, 2022, which was objected to, discovery was not extended on this issue. (Id.; Khosrowpour Decl. ¶ 4, Exh. B.) Moreover, Movant waited until October 2022 to meet and confer with Plaintiff on this issue before issuing a second request for medical examination. (Khosrowpour Decl. ¶¶ 7, 10, Exhs. D, E.) Thus, if Movant was concerned about conducting a medical examination, it would have acted with more haste and diligence.

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

Conclusion

              Based on the foregoing, the Court DENIES Movant’s motion for leave to compel Plaintiff James Howard Arnold.

Moving party is ordered to give notice.