Judge: William A. Crowfoot, Case: 21STCV00599, Date: 2022-10-18 Tentative Ruling

Case Number: 21STCV00599    Hearing Date: October 18, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On January 7, 2021, plaintiff Jhamak Sabet (“Plaintiff”) filed this action against defendants Victor Yzaguirre (“Defendant”), Adoni Herrera, and Bryan Dalcour-Holley (collectively, “Defendants”) asserting a cause of action for “negligence/per se”.  Plaintiff alleges that on or about October 15, 2019, he and Defendants were involved in a three-car collision. 

On July 11, 2022, Plaintiff filed this motion for an order compelling Defendant to produce a report pursuant to Code of Civil Procedure section 2032.610.  Plaintiff also requests $3,576 in sanctions against Defendant and counsel of record.

II.          LEGAL STANDARD

Under Code of Civil Procedure section 2032.610, a party who submits to a physical examination has the option of making a written demand for a “copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.”  (Code Civ. Proc., § 2032.610, subd. (a)(1).)  If a party fails to make a timely delivery, the demanding party may move for an order compelling the delivery of the report.  (Code Civ. Proc., § 2032.620, subd. (a).)  The motion must be accompanied by a meet and confer declaration.  (Ibid.)  The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel delivery of medical reports, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., § 2032.620, subd. (b).) 

III.        DISCUSSION

It is undisputed that Plaintiff submitted to an orthopedic examination by Steven Nagelberg, M.D. (“Dr. Nagelberg”).  Plaintiff did so after serving a response to Defendant’s demand for an IME which stated: “THE REPORT MUST INCLUDE A CLEAR HISTORY, A CLEAR DIAGNOSIS, AND A CLEAR PROGNOSIS.  It is your responsibility to explain this to the doctor, who may be used to generating reports in a different form.  If the report does not contain these elements, or if they are set out in an evasive way, the plaintiff will seek evidentiary and monetary sanctions.”  (Motion, Ex. 2, p. 3.)  Plaintiff takes issue with Dr. Nagelberg’s report and claims that Dr. Nagelberg did not provide a prognosis for Plaintiff’s current conditions.  (Motion, 9:2-6.)  Plaintiff contends that Dr. Nagelberg’s report is insufficient because the report states: “Based on my examination today, I see nothing here to suggest the need for any type of invasive treatment or supervised medical care.”  (Motion, Ex. 3, p. 6.) 

Plaintiff cites to Stedman’s Medical Dictionary, which defines “prognosis” as “[a] forecast of the probable course and/or outcome of a disease.”  (Motion, 7:22-23 [citing to Stedman’s Medical Dict. 28th Ed. (2006) p. 1571, col. 2.)  Plaintiff also cites to Dorland’s Illustrated Medical Dictionary which defines a prognosis as “a forecast as to the probable outcome of an attack of disease; the prospect of recovery from a disease as indicated by the nature and symptoms of the case.”  (Motion, 7:23-8:2 [citing to Dorland’s Illustrated Medical Dict. 31th Ed. (2007) p. 1546, col. 2.)  Using these two definitions, Plaintiff concludes that an examining physician is required to provide a report forecasting the probable course and outcome of Plaintiff’s current condition and contends that Dr. Nagelberg’s report only contains “a narrow statement about future medical care.” 

The Court disagrees.  Dr. Nagelberg’s report provides a sufficient prognosis.  Dr. Nagelberg noted that Plaintiff had a “full range of cervical motion, with no tenderness” and a “normal neurologic examination of the upper extremities.”  There was “no lumbar tenderness” and “full range of lumbar spine motion, with a normal neurologic examination of the lower extremities.”  Further, there was “no tenderness” as to her left shoulder and had full range of motion, and “all provocative testing was negative.”  Last, Plaintiff was noted to be able to “perform a full squat” with “no joint line tenderness or effusion” and no instability.  Essentially, Dr. Nagelberg concluded that there is nothing wrong with Plaintiff and, accordingly, Plaintiff will not need any invasive treatment or supervised medical care.  To the extent that Plaintiff disagrees with Dr. Nagelberg’s findings and conclusions, Plaintiff can retain her own expert to provide a contrary opinion. 

The Court declines to impose sanctions on either party.  Although Plaintiff’s motion was unsuccessful, the Court notes that Defendant did not provide a response to Plaintiff’s counsel’s two attempts to meet and confer on May 20, 2022 and July 1, 2022. 

IV.         CONCLUSION

Plaintiff’s motion is DENIED. 

Plaintiff’s request for sanctions is DENIED. 

Defendant’s request for sanctions is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.