Judge: Steven A. Ellis, Case: 22STCV06786, Date: 2024-03-15 Tentative Ruling
Case Number: 22STCV06786 Hearing Date: April 4, 2024 Dept: 29
Defendants’ Motion to Compel a Second Physical Examination
of Plaintiff
Tentative
The motion is denied.
Background
On February 24, 2022, Plaintiff
Molly Jean Sliwoski filed a complaint against Defendant Extended Stay
America, Inc.; ESA P Porfolio Operating Lessee, LLC (“ESAP”); and Does 1
through 100, asserting causes of action for negligence and premises
liability. Plaintiff alleges that on September 29, 2020, while
Plaintiff was visiting a guest at Defendant’s premises, she sat on a bench, the
bench collapsed, and she sustained injuries as a result.
On March 20, 2022, Defendant
filed its answer.
On July 21, 2022, Plaintiff
amended the complaint to name ESH Hospitality, Inc., as Doe 1.
On September 19, 2022,
Defendant ESA Management, LLC (“ESAM”), erroneously sued as Extended Stay
America, Inc. and ESH Hospitality, Inc., filed its answer.
On June 12, 2023, Plaintiff
filed a First Amended Complaint (“FAC”). On June 16, 2023, ESAP and
ESAM (collectively, “Defendants”) filed an answer to the FAC.
On December 29, 2023, Defendants filed this
motion to compel Plaintiff’s independent
medical examination. Plaintiff filed her opposition on March 21, 2024.
Defendants filed a reply on March 27, 2024.
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).)
In a personal injury action, the defendant may
demand one physical examination of plaintiff as of right, without advance leave
of the court. (Code Civ. Proc., §
2032.220.)
If a defendant seeks a further physical examination
of plaintiff, or a mental examination, the defendant must first file a motion
and “obtain leave of court.” (Code Civ. Proc., § 2032.310, subd.
(a).) Such a motion must “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.” (Id.,
subd. (b).) The court may grant such a motion “only for good cause shown.” (Code
Civ. Proc., § 2032.320, subd. (a).) A showing of good cause generally requires
“that the party produce specific facts justifying discovery and that the
inquiry be relevant to the subject matter of the action or reasonably
calculated to lead to the discovery of admissible evidence.” (Vinson v.
Super. Ct. (1987) 43 Cal.3d 833, 840.)
“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.” (Code Civ. Proc., § 2032.320, subd.
(d).) “The court is to describe¿in detail¿who will conduct the
examination, where and when it will be conducted, the conditions, scope and
nature of the examination, and the diagnostic tests and procedures to be
employed. The way to describe these ‘diagnostic tests and procedures’—fully¿and¿in
detail—is to list them by name.” (Carpenter v. Super. Ct.¿(2006)
141 Cal.App.4th 249, 260.)¿¿
The moving party¿must support the motion with a meet
and confer declaration. (Code Civ. Proc., § 2032.310, subd. (b).) A
meet and confer declaration must 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.)¿¿¿¿
The examination, if allowed, will be limited to
whatever condition is “in controversy” in the action.¿ (Code Civ. Proc., §
2032.020, subd. (a).)
Discussion
As a
preliminary matter, Defendants argue that Plaintiff’s opposition was untimely
served. The hearing on Defendants’ motion
was set for April 4, 2024. Plaintiff’s
opposition was due nine court days earlier, or on March 21, 2024 (April 1 was a
court holiday). (Code Civ. Proc., §
1005, subd. (b).)
Plaintiff
filed her opposition on March 21. So far,
so good. But, according to the proof of
service filed with the opposition, Plaintiff served the opposition by regular mail. That is completely improper. Oppositions must “be served by personal
delivery, facsimile transmission, express mail, or other means consistent with
Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure
delivery to the other party or parties not later than the close of the next
business day after the time the opposing papers … are filed.” (Id., subd. (c).)
Defendants
contend that this improper and untimely service deprived them of the full
period of time they needed to prepare a reply.
(Reply, at pp. 4-6.)
Given
the importance of this motion, the Court will exercise its discretion to accept
Plaintiff’s late-filed opposition this time.
Plaintiff’s counsel is expressly admonished not to use regular mail for
service of opposition (or reply) papers in future motions in this case and is
advised that the Court may not in the future consider other oppositions or
replies that are served by Plaintiff in violation of the requirements of Code
of Civil Procedure section 1005, subdivision (c).
As to
this motion, the Court will entertain a motion by Defendants for a brief
continuance of this hearing, along with the opportunity for Defendants to file
a revised reply.
The
Court now proceeds to the merits of the motion, in the event that Defendants do
not request a continuance.
On June
23, 2023, Plaintiff was examined by Dr. Ross Nathan, pursuant to a demand for a
physical examination issued by Defendants pursuant to Code of Civil Procedure
section 2032.220. (Farahi Decl., ¶ 3.) Defendants’ demand
for the examination by Dr. Nathan stated the following:
The
examination will consist of a general orthopedic examination, which will
include testing of overall health and neurological reflexes and reactions as
related to the affected areas and may include the taking of x-rays, CT scans,
and/or MRIs. The examination will also
include a taking of past medical history due to the fact that Plaintiff
declined to complete her deposition prior to the date for the IME. The examination will include examination of
Plaintiff’s subjective complaints and complaints in general, an examination of
Plaintiff’s alleged injuries to the body parts/areas of the body related to the
incident in dispute, and prior injuries and surgeries which may have affected
Plaintiff’s current condition. [¶] … [T]his examination may [include] questions
relating to: the nature and extent of the injuries alleged to have been
sustained in the accident that is the subject matter of this action; past or
present symptoms and conditions relating to the injuries which are the subject
of this action; relevant medical history, including the manner in which the
injuries were incurred; relevant prior injuries; and relevant occupational
history.
(Id., Exh. A.)
Following the examination by Dr. Nathan, Defendants contend that Plaintiff
agreed to a second physical examination with Dr. Glenn Pfeffer. (Kim Decl., ¶ 6.) Defendants sent a letter to Plaintiff on August
22, 2023, confirming the reported agreement.
(Id., Exh. 1.) Three days
later, Plaintiff responded to the letter, stating a “conditional agreement” to
the examination – but the condition was that Defendants needed to explain “the
medical imperatives for another DME – offering new insights or clinically
necessary data not captured in Dr. [Nathan’s] assessment.” (Farahi Decl., Exh. F.) In other words, there was no agreement, at
least as of August 25, 2023.
There appears to have been no further communication on this subject until
September 13, 2023, when Defendants issued a notice of a second physical examination
with Dr. Pfeffer. (Kim Decl., ¶ 7 &
Exh. 2.) This demand for a second
examination stated the following:
This
examination is necessary because the plaintiff has put the condition of her
feet at issue as a basis for her claims from this incident. This information was not provided until her
recent deposition and this has now necessitated plaintiff to be examined by Dr.
Glenn Pfeffer. [¶] The examination will consist of a general
orthopedic examination, which will include testing of overall health and neurological
reflexes and reactions as related to the affected areas and may include the taking
of x-rays, CT scans, and/or MRIs. The
examination will also include a taking of past medical history. The examination will include examination of
Plaintiff’s subjective complaints and complaints in general, an examination of
Plaintiff’s alleged injuries to the body parts/areas of the body related to the
incident in dispute, and prior injuries and surgeries which may have affected
Plaintiff’s current condition. [¶] … [T]his examination may [include] questions
relating to: the nature and extent of the injuries alleged to have been
sustained in the accident that is the subject matter of this action; past or
present symptoms and conditions relating to the injuries which are the subject
of this action; relevant medical history, including the manner in which the
injuries were incurred; relevant prior injuries; and relevant occupational
history.
(Id., Exh. 2.) Other than
the first two sentences quoted above, the text is largely identical to the
notice issued for the examination by Dr. Nathan.
Plaintiff served objections on October 5 that stated that she would not
appear. (Farahi Decl., Exh. G.)
There was no further follow up by Defendants regarding the second
physical examination at that time – or, at least, the declaration submitted in
support of the motion does not show that there was any such follow up.
The parties mediated on December 12, 2023, and did not resolve the
matter. (Id., ¶ 8.)
On December 26, 2023, Defendants sent a letter to Plaintiff about the second
physical examination. (Id., ¶ 9 &
Exh. 3.) Defendants describe this letter
as “another effort to meet and confer.”
(Id., ¶ 9.) The letter
requested a response by the next day, December 27 and stated that if there was
no response, Defendants “will have no choice but to file a Motion to Compel IME
with a request for sanctions.” (Id.,
Exh. 3.)
Plaintiff responded in writing on December 27 and suggested “a prompt
meet and confer to address the resolve this matter.” (Farahi Decl., Exh. I.)
Defendants left a voice mail message for Plaintiff on December 28. (Kim Decl., ¶ 10.) Later that day, a legal assistant responded
that Plaintiff’s counsel was not available and suggested that counsel schedule
a call. (Farahi Decl., Exh. J.)
On this record, the Court finds that the Defendants did not engage in a proper
meet and confer as required by Code of Civil Procedure section 2032.310,
subdivision (b). Defendants made demands
but did not respond to the reasonable objections raised by Plaintiff and did
not make “a reasonable and good faith attempt at an informal resolution” of the
issue. (Code Civ. Proc., § 2016.040.) Based on the record, it appears that after a
phone call on August 22, 2023, all that Defendants did was send a brief and
conclusory demand letter on December 26, leave a voice mail message on December
28, and file the motion the next day.
Accordingly, the motion is denied, without prejudice, for failure to
satisfy the meet and confer requirement of Code of Civil Procedure section
2032.310, subdivision (b).
Both parties’ requests for sanctions are denied.
Defendants’ request is denied as they have not shown that Plaintiff
unsuccessfully opposed a motion.
Plaintiff’s request is denied. The only statutory authority cited by Plaintiff is Code of Civil Procedure section 2023.030.
(Opp. at p. 12.) That statute,
however, does not provide an independent basis to award sanctions; to the
contrary, the statute expressly states that a sanctions award must be
“authorized by the chapter governing any particular discovery method or any
other provision of this title.” (Code Civ. Proc.,
§ 2023.030.) The Court of Appeal, in an opinion by Justice
Moor, recently made this very point in City of Los Angeles v.
PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504 (“sections
2023.010 and 2023.030 do not independently authorize the trial court to impose
monetary sanctions for misuse of discovery … without regard to any other
provision of the Discovery Act”). The Court is aware that the
California Supreme Court has granted review of the City of Los Angeles case,
but the Court notes that the order granting review, filed on January 25, 2023,
states that pending review, the appellate opinion “may be cited,” including
“for its persuasive value.” The Court finds the reasoning of Justice
Moor to be persuasive.
Conclusion
The Court
DENIES Defendants’ motion to compel a second physical examination of Plaintiff,
without prejudice, for failure to satisfy the statutory meet and confer
requirement.
The
Court DENIES both sides’ requests for sanctions.
Moving
Party is ORDERED to give notice.