Judge: Steven A. Ellis, Case: 23STCV10461, Date: 2024-11-07 Tentative Ruling

Case Number: 23STCV10461    Hearing Date: November 7, 2024    Dept: 29

Abundis v. Higgins
23STCV10461
Defendant’s Motion to Compel Medical Examination of Plaintiff.

Tentative

The motion is granted.

Background

On May 10, 2023, Faye Abundis (“Plaintiff”) filed a complaint against Tyler Higgins (“Defendant”) and Does 1 through 50 for negligence arising out of an alleged automobile accident on May 14, 2021.

On September 25, 2023, Defendant filed an answer.

On October 15, 2024, Defendant filed this motion to compel Plaintiff to comply with a demand for a first medical (physical) examination.

No opposition has been filed.

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 fails to respond to the demand for a physical examination, Code of Civil Procedure section 2032.240 provides that the defendant “may move for an order compelling response and compliance with [the] demand.”  (Code Civ. Proc., § 2032.420, subd. (b).)  No meet and confer is required.

Discussion

Plaintiff in this action seeks recovery for physical injuries allegedly sustained in a motor vehicle accident.  (Complaint, ¶ 10.)  Defendant seeks an order compelling Plaintiff’s compliance with the demand for a medical examination with Luke Macyszyn, M.D.

Defendant served demand for examination on June 27, 2024; Plaintiff failed to appear to the September 11, 2024 examination. (Brunello Decl., ¶¶ 6, 9.) Defendant propounded the second demand for examination on September 17, 2024; Plaintiff alerted Defendant to her nonavailability four days before the examination on October 11, 2024. (Id., ¶¶ 12-13.)  Counsel alerted Plaintiff to the filing of this motion due to the second missed examination. (Id., ¶ 14.)

Defendant has satisfied all of the substantive and procedural requirements for this motion.  Defendant served a proper demand for a medical examination, and Plaintiff did not respond or comply.

Accordingly, the motion is granted.

Conclusion 

The Court GRANTS Defendant’s motion to compel Plaintiff to comply with the demand for a medical examination.

The Court ORDERS Plaintiff Faye Abundis to appear for and submit to a medical (neurological/neurosurgical) examination conducted by Luke Macyszyn, M.D., on November __, 2024, at ____ a.m./p.m., at 16133 Ventura Boulevard, Suite 700, Encino, California 91436, as set forth in the demand previously served by Defendant in this action.

Moving party is ordered to give notice.