Judge: Steven A. Ellis, Case: 21STCV19502, Date: 2023-10-18 Tentative Ruling

Case Number: 21STCV19502    Hearing Date: November 29, 2023    Dept: 29

Tentative

The Court encourages the parties to reschedule the IME by mutual agreement and to take this motion off calendar.

Background

This case arises out of a motor vehicle accident that allegedly occurred on December 12, 2019. On May 24, 2021, Plaintiff William Donat (“Plaintiff”) filed his Complaint against Defendants Jose Santiago, Young’s Food Services, Inc., B&R Group Logistics Holding LLC, and Does 1 through 50, asserting causes of action for (1) Motor Vehicle Negligence, and (2) General Negligence.

On August 13, 2021, Defendants Young’s Food Services, Inc., and Jose Manuel Santiago-Garcia (erroneously sued as Jose Santiago) (“Defendants”) filed their Answer.

On April 26, 2023, Defendants filed this motion for Plaintiff to appear at an independent orthopedic medical examination (“IME”). Defendant also seeks monetary sanctions. Plaintiff filed an untimely opposition on November 20. Defendants did not file a reply.  

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, 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.” (Code Civ. Proc. § 2032.220, subd. (a).) Leave of the court is not required. (Id., subd. (b).) The demand must “specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the physician who will perform the examination” and must be scheduled for a date that is at least 30 days from service of the demand. (Id., subds. (c), (d).) Defendant must serve a copy of the demand “on the plaintiff and on all other parties who have appeared in the action.” (Id., subd. (e).)

The plaintiff upon whom a demand has been made must respond within twenty (20) days stating that he or she will (1) comply with the demand in its entirety, (2) comply as specifically modified, or (3) refuses to comply for the reasons specified in the response.  (Code Civ. Proc., § 2032.230, subds. (a), (b).) A plaintiff who fails to timely respond to a demand for physical examination waives any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).) The Court may, however, relieve the plaintiff from a waiver if “plaintiff has subsequently served a response that is in substantial compliance with Section 2023.230” and “plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Id., subd. (a)(1)-(2).)

A defendant may file a motion for an order compelling plaintiff’s response and compliance with the demand for a physical examination. (Code Civ. Proc., § 2032.240, subd. (b).)  Sanctions must be imposed on the “party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and compliance with a demand for physical examination, unless [the court] finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.” (Id., subd. (c).)

Preliminary Issue

As a threshold matter, the Court will accept and consider Plaintiff’s untimely opposition. Defendants may seek a brief continuance of the hearing and/or the opportunity to file a reply to Plaintiff’s opposition.

Discussion

Defendants initially served a demand for Plaintiff’s IME in August 2022, scheduling the examination for October 3, 2022. (Peralta Decl., ¶ 4.) Prior to the scheduled date, Plaintiff advised Defendants that Plaintiff was not available. (Id., ¶ 5.)

Defendants then served a new demand, the demand at issue in this motion, on February 17, 2023. (Id., ¶ 9 & Exh. B.) The examination was scheduled for March 22. (Ibid.)

Defendants state that Plaintiff “was a no show” at the examination. (Mot., at 2:16-17.) Plaintiff submits evidence with his Opposition, however, showing that Plaintiff served a timely objection stating that he was not available on the scheduled date and offering four alternative dates. (Cherkezian Decl., ¶ 8 & Exh. 5.) Plaintiff also submits evidence showing that he followed up on three subsequent occasions regarding the scheduling of the IME and received no response from Defendants. (Id., ¶¶ 10-12 & Exhs. 6-8.)

Under these circumstances, the Court encourages counsel to work out the scheduling of the IME by mutual agreement and to take this motion off calendar. Defendants are plainly entitled to a promptly taken IME, and of course counsel for all parties should take into account the reasonable scheduling constraints of Plaintiff and the examining medical professional.   

If moving parties prefer to move forward with the hearing, they will need to explain why they are entitled to an order compelling the IME if (as appears to be the case) Plaintiff filed a proper objection to their IME Demand.

Conclusion