Judge: Steven A. Ellis, Case: 22STCV03609, Date: 2024-11-08 Tentative Ruling

Case Number: 22STCV03609    Hearing Date: November 8, 2024    Dept: 29

Paz v. Fenix Marine Services
22STCV03609
Defendant’s Motion to Compel Plaintiff to Comply with Demand for Medical Examination

Tentative

The motion is denied without prejudice.

Background

On January 28, 2022, Dario Paz (“Plaintiff”) filed a complaint against Fenix Marine Services, LTD, Eagle Marine Services, LTD, Jeff Brown, Paula Blair, and Does 1 through 100, asserting causes of action for general negligence and motor vehicle negligence arising out of an alleged automobile accident on January 30, 2020.

On July 25, 2023, Fenix Marine Services, LTD (“Defendant”) filed an answer to the complaint. Defendant filed a second answer on August 21, 2023, stating that it was formerly known as Eagle Marine Services, LTD.

On November 3, 2023, the Court, at the request of Plaintiff, dismissed Defendants Jeff Brown and Paula Blair.

On February 28, 2024, Plaintiff amended the complaint to name Jose Chavez as Doe 1.

On October 2, 2024, Defendant filed this motion to compel Plaintiff to comply with a demand for a medical examination.  Plaintiff filed an opposition on October 22, and Defendant filed a reply on October 25.

Legal Standard

“Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2032.020, subd. (a).)

Code of Civil Procedure section 2032.220 provides that in a personal injury action, the defendant may demand one physical examination of plaintiff as of right, without advance leave of the court:

“(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 ….

(c)  A demand 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 physician who will perform the examination.

(d)  A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand ….”

(Code Civ. Proc., § 2032.220.)

Within 20 days of service of a demand for a physical examination, the plaintiff to whom the demand is directed must respond in writing and state that the plaintiff “will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination.”  (Code Civ. Proc., § 2032.230, subd. (a).)  Failure to serve a timely response waives any objection to the demand.  (Code Civ. Proc., § 2032.240, subd. (a).)

If a plaintiff serves a response but the defendant “deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted,” the defendant “may move for an order compelling compliance with the demand.”  (Code Civ. Proc., § 2032.250, subd. (a).)  “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Ibid.)

Discussion

The Court must deny the motion for a threshold, procedural reason.

This motion to compel is brought under Code of Civil Procedure section 2032.250.  Subdivision (a) of the statute contains a mandatory requirement that the motion “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2032.250, subd. (a).)  Section 2016.040 requires that a meet and confer declaration “shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Code Civ. Proc., § 2016.040.)

Defendant filed this motion without the required meet and confer declaration.  The declaration filed with the motion states that the demand was served and that Plaintiff served an objection.  (Ktshoyzan Decl., ¶¶ 7-8.)  The declaration says nothing about any communication between counsel after the objection was served.

In reply, Defendant argues that this mandatory statutory requirement should be excused because “any such efforts would be futile.”  (Reply, p. 5.)  But there is no futility exception in the statute.  To the contrary, a meet and confer is required.  The conference need not necessarily be long, particularly if no progress is being made, but it must occur, and the declaration must accompany the motion.  A reasonable and good faith attempt to resolve the issues is required.

Accordingly, the motion is denied without prejudice.

Conclusion 

The Court DENIES WITHOUT PREJUDICE Defendant’s motion to compel Plaintiff to comply with the demand for a medical examination.

Moving party is ordered to give notice.