Case Number: BC718176 Hearing Date: December 10, 2019 Dept: 4A

Motion to Compel a Physical Examination

Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.

BACKGROUND

On August 15, 2018, Plaintiff Terri Bobbitt (“Plaintiff”) filed a complaint against Defendants Abe Delrosario and Isaiah Delrosario (“Defendants”) alleging motor vehicle negligence for an automobile collision that occurred on September 6, 2016.

On December 2, 2019, Defendants filed a motion to compel Plaintiff to appear at a physical examination beyond the 75-mile statutory limit pursuant to California Code of Civil Procedure section 2032.320.

Trial is set for February 18, 2020.

PARTY’S REQUESTS

Defendants asks the Court to compel Plaintiff to appear for a physical examination 114 miles from Plaintiff’s residence.

LEGAL STANDARD

California Code of Civil Procedure section 2032.220, subdivision (a) states: “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.”

California Code of Civil procedure section 2032.310 states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination 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 person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

California Code of Civil Procedure section 2032.320 states: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) 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. (e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: (1) The court determines that there is good cause for the travel involved . . . [and] (2) [t]he order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”

DISCUSSION

The Court initially notes that the motion was filed less than 16 court-days before the hearing. Because the moving papers were timely served on Plaintiff on November 6, 2019 by U.S. mail, however, the Court will rule on the substance of this motion unless Plaintiff requests a continuance.

Defendants argue there is good cause to compel Plaintiff to travel 114 miles from her residence in Bakersfield, California to Los Angles to appear for a physical examination for a number of reasons. First, the collision occurred in Los Angeles County, Defendants reside in Los Angeles County, Plaintiff filed this lawsuit in Los Angeles County, and trial will be in Los Angeles County. (Motion, p. 5:7-5:14.) Second, it would be burdensome to retain a doctor in Kern County and arrange for that doctor’s travel to trial in Los Angeles County. (Motion, p. 5:12-5:16.) Third, Plaintiff’s appearance at an examination in Los Angeles is the most cost-efficient option for Defendants. (Motion, p. 5:17-5:23.) Fourth, Plaintiff is able-bodied and owns a car. (Motion, p. 5:24-5:27.) Fifth, the burden on Plaintiff is insignificant when weighed against the possible impairment of Defendants’ right to choose any doctor as their examiner. (Motion, p. 6:1-6:3.) Sixth, an order compelling Plaintiff’s medical examination in Los Angeles would require Plaintiff to travel only 39 additional miles. (Motion, p. 6:4-6:6.) Finally, Plaintiff’s physical examination was noticed for January 10, 2020, providing ample time to make travel arrangements. (Motion, p. 6:12-6:13.)

The Court agrees with Defendants. Plaintiff’s inconvenience in traveling an extra 39 miles to and from the examination is relatively minor. Plaintiff does not submit any evidence showing it would be burdensome. However, the cost imposed on Defendants to retain a doctor in Bakersfield to examine Plaintiff and then present testimony in Los Angeles would be substantial. As such, the Court finds there to be good cause to compel Plaintiff’s compliance with the demand for physical examination served on September 30, 2019 and attached as Exhibit A to Daniel Feldman’s declaration. (Feldman Decl., ¶ 4, Exh. A.)

CONCLUSION

Defendant’s motion is GRANTED.

Plaintiff is ordered to appear for a mental examination by Keith E. Liberman, M.D. as follows:

Date: January 10, 2020

Time: 10:15 a.m.

Location: 8641 Wilshire Boulevard, Suite 300, Beverly Hills, California 90211.

Nature: The examination will be a physical orthopedic examination of injuries Plaintiff claims in this action. No testing shall be painful, protracted, or intrusive. The examination is to not take more than eight hours.

Defendant is ordered to give notice of this ruling.