This case was last updated from Los Angeles County Superior Courts on 10/15/2021 at 03:53:45 (UTC).

RAJEEV MALHOTRA VS EFRAIN NAVARRO

Case Summary

On 11/28/2018 RAJEEV MALHOTRA filed a Personal Injury - Other Personal Injury lawsuit against EFRAIN NAVARRO. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4350

  • Filing Date:

    11/28/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

MALHOTRA RAJEEV

Defendant

NAVARRO EFRAIN

Attorney/Law Firm Details

Plaintiff Attorney

LIBMAN MICHAEL JACOB

Defendant Attorney

MAHLSTEDT JOY L

 

Court Documents

Minute Order - Minute Order (Order to Show Cause Re: Reclassification to Unlimited Jurisdi...)

8/26/2021: Minute Order - Minute Order (Order to Show Cause Re: Reclassification to Unlimited Jurisdi...)

Reply (name extension) - Reply TO DEFENDANTS REPLY BRIEF IN OPPOSITION TO REQUEST FOR RECLASSIFICATION AND TRIAL CONTINUANCE; SUPPLEMENTAL DECLARATION OF MICHAEL J. LIBMAN

8/19/2021: Reply (name extension) - Reply TO DEFENDANTS REPLY BRIEF IN OPPOSITION TO REQUEST FOR RECLASSIFICATION AND TRIAL CONTINUANCE; SUPPLEMENTAL DECLARATION OF MICHAEL J. LIBMAN

Notice (name extension) - Notice OF ERRATA RE: PLAINTIFFS REPLY TO DEFENDANTS REPLY BRIEF IN OPPOSITION TO REQUEST FOR RECLASSIFICATION AND TRIAL CONTINUANCE

8/20/2021: Notice (name extension) - Notice OF ERRATA RE: PLAINTIFFS REPLY TO DEFENDANTS REPLY BRIEF IN OPPOSITION TO REQUEST FOR RECLASSIFICATION AND TRIAL CONTINUANCE

Brief (name extension) - Brief IN OPPOSITION TO THE REQUEST FOR RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICTION AND OPPOSITION TO TRIAL CONTINUANCE; MEMORANDUM OF POINTS AND AUTH

8/17/2021: Brief (name extension) - Brief IN OPPOSITION TO THE REQUEST FOR RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICTION AND OPPOSITION TO TRIAL CONTINUANCE; MEMORANDUM OF POINTS AND AUTH

Declaration (name extension) - Declaration OF ZHANNA SANAMYAN IN SUPPORT OF PLAINTIFFS SUPPLEMENTAL BRIEF FOR ORDER TO SHOW CAUSE RE: RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICT

8/2/2021: Declaration (name extension) - Declaration OF ZHANNA SANAMYAN IN SUPPORT OF PLAINTIFFS SUPPLEMENTAL BRIEF FOR ORDER TO SHOW CAUSE RE: RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICT

Brief (name extension) - Brief PLAINTIFFS SUPPLEMENTAL BRIEF FOR ORDER TO SHOW CAUSE RE: RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICTION PURSUANT TO C.C.P. 473(b); REQUEST FOR TR

8/3/2021: Brief (name extension) - Brief PLAINTIFFS SUPPLEMENTAL BRIEF FOR ORDER TO SHOW CAUSE RE: RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICTION PURSUANT TO C.C.P. 473(b); REQUEST FOR TR

Notice of Change of Firm Name - Notice of Change of Firm Name

6/11/2021: Notice of Change of Firm Name - Notice of Change of Firm Name

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 10 TO EXCLUDE THE USE OF THE REPTILE THEORY; MEMORANDUM OF AUTHORITIES

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 10 TO EXCLUDE THE USE OF THE REPTILE THEORY; MEMORANDUM OF AUTHORITIES

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE RE: DEFENDANT'S AUTOMOBILE INSURANCE; MEMORANDUM OF POINTS AND AUTHORITIES

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE RE: DEFENDANT'S AUTOMOBILE INSURANCE; MEMORANDUM OF POINTS AND AUTHORITIES

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 5 TO EXCLUDE MEDICAL BILLS AND RECORDS WITHOUT PROPER FOUNDATION

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 5 TO EXCLUDE MEDICAL BILLS AND RECORDS WITHOUT PROPER FOUNDATION

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 4 TO EXCLUDE VOIR DIRE INQUIRIES OF EMPLOYMENT BY INSURANCE COMPANY BY PLAINTIFF'S ATTORNEY; MEMORANDUM OF POINTS AUTHORITIES

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 4 TO EXCLUDE VOIR DIRE INQUIRIES OF EMPLOYMENT BY INSURANCE COMPANY BY PLAINTIFF'S ATTORNEY; MEMORANDUM OF POINTS AUTHORITIES

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 8 FOR PERMISSION TO USE DEMONSTRATIVE EVIDENCE BEFORE ADMISSION; MEMORANDUM OF POINTS AND AUTHORITIES

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 8 FOR PERMISSION TO USE DEMONSTRATIVE EVIDENCE BEFORE ADMISSION; MEMORANDUM OF POINTS AND AUTHORITIES

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 6 TO EXCLUDE REFERENCES AT TRIAL AS TO ANY OFFERS OF SETTLEMENT; MEMORANDUM OF POINTS AND AUTHORITIES

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 6 TO EXCLUDE REFERENCES AT TRIAL AS TO ANY OFFERS OF SETTLEMENT; MEMORANDUM OF POINTS AND AUTHORITIES

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 2 TO EXCLUDE ACTUAL OR POTENTIAL DOLLAR AMOUNTS OF DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 2 TO EXCLUDE ACTUAL OR POTENTIAL DOLLAR AMOUNTS OF DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 9 TO EXCLUDE EVIDENCE OR CLAIMS NOT DISCLOSED DURING DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 9 TO EXCLUDE EVIDENCE OR CLAIMS NOT DISCLOSED DURING DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES

Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 3 TO EXCLUDE PLAINTIFFS OR DEFENDANTS FINANCIAL CONDITION; MEMORANDUM OF POINTS AND AUTHORITIES

6/29/2021: Motion in Limine (name extension) - Motion in Limine MOTION IN LIMINE NO. 3 TO EXCLUDE PLAINTIFFS OR DEFENDANTS FINANCIAL CONDITION; MEMORANDUM OF POINTS AND AUTHORITIES

Motion in Limine (name extension) - Motion in Limine NO. 7 TO EXCLUDE PLAINTIFF'S WITNESSES AND EVIDENCE FOR PLAINTIFF'S FAILURE TO COMPLY WITH C.C.P. 96

7/8/2021: Motion in Limine (name extension) - Motion in Limine NO. 7 TO EXCLUDE PLAINTIFF'S WITNESSES AND EVIDENCE FOR PLAINTIFF'S FAILURE TO COMPLY WITH C.C.P. 96

Exhibit List - Exhibit List

7/20/2021: Exhibit List - Exhibit List

68 More Documents Available

 

Docket Entries

  • 01/04/2022
  • Hearing01/04/2022 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 08/26/2021
  • DocketJury Trial scheduled for 01/04/2022 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 08/26/2021
  • DocketMinute Order (Order to Show Cause Re: Reclassification to Unlimited Jurisdi...)

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  • 08/26/2021
  • DocketOrder to Show Cause Re: Reclassification to Unlimited Jurisdiction scheduled for 08/26/2021 at 09:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 08/26/2021; Result Type to Held

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  • 08/20/2021
  • DocketNotice OF ERRATA RE: PLAINTIFFS REPLY TO DEFENDANTS REPLY BRIEF IN OPPOSITION TO REQUEST FOR RECLASSIFICATION AND TRIAL CONTINUANCE; Filed by: RAJEEV MALHOTRA (Plaintiff); As to: EFRAIN NAVARRO (Defendant)

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  • 08/19/2021
  • DocketReply TO DEFENDANTS REPLY BRIEF IN OPPOSITION TO REQUEST FOR RECLASSIFICATION AND TRIAL CONTINUANCE; SUPPLEMENTAL DECLARATION OF MICHAEL J. LIBMAN; Filed by: RAJEEV MALHOTRA (Plaintiff)

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  • 08/17/2021
  • DocketBrief IN OPPOSITION TO THE REQUEST FOR RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICTION AND OPPOSITION TO TRIAL CONTINUANCE; MEMORANDUM OF POINTS AND AUTHORITIES; Filed by: EFRAIN NAVARRO (Defendant)

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  • 08/03/2021
  • DocketBrief PLAINTIFFS SUPPLEMENTAL BRIEF FOR ORDER TO SHOW CAUSE RE: RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICTION PURSUANT TO C.C.P. 473(b); REQUEST FOR TRIAL CONTINUANCE; Filed by: RAJEEV MALHOTRA (Plaintiff)

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  • 08/02/2021
  • DocketDeclaration OF ZHANNA SANAMYAN IN SUPPORT OF PLAINTIFFS SUPPLEMENTAL BRIEF FOR ORDER TO SHOW CAUSE RE: RECLASSIFICATION OF THE MATTER FROM LIMITED TO UNLIMITED JURISDICTION PURSUANT TO C.C.P. 473(b); REQUEST FOR TRIAL CONTINUANCE; Filed by: RAJEEV MALHOTRA (Plaintiff)

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  • 07/27/2021
  • DocketMinute Order (Jury Trial)

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91 More Docket Entries
  • 11/30/2018
  • DocketCivil Case Cover Sheet; Filed by: RAJEEV MALHOTRA (Plaintiff)

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  • 11/30/2018
  • DocketComplaint; Filed by: RAJEEV MALHOTRA (Plaintiff); As to: EFRAIN NAVARRO (Defendant)

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  • 11/29/2018
  • DocketNon-Jury Trial scheduled for 05/27/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/29/2018
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 12/01/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/29/2018
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk Courthouse

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  • 11/28/2018
  • DocketComplaint; Filed by: RAJEEV MALHOTRA (Plaintiff); As to: EFRAIN NAVARRO (Defendant)

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  • 11/28/2018
  • DocketSummons on Complaint; Issued and Filed by: RAJEEV MALHOTRA (Plaintiff); As to: EFRAIN NAVARRO (Defendant)

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  • 11/28/2018
  • DocketCivil Case Cover Sheet; Filed by: RAJEEV MALHOTRA (Plaintiff); As to: EFRAIN NAVARRO (Defendant)

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  • 11/28/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 11/28/2018
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

b"

Case Number: 18STLC14350 Hearing Date: August 26, 2021 Dept: 25

OSC RE RECLASSIFICATION TO UNLIMITED JURISDICTION\r\n

\r\n\r\n

(CCP § 403.040)

\r\n\r\n

\r\n\r\n

\r\n\r\n

PROPOSED RULING:

\r\n\r\n

\r\n\r\n

The Court finds\r\nPlaintiff Rajeev Malhotra has not demonstrated reclassification to unlimited\r\njurisdiction court is proper.

\r\n\r\n

\r\n\r\n

The order to\r\nshow cause is discharged.

\r\n\r\n

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ANALYSIS:

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\r\n\r\n

I. \r\nBackground

\r\n\r\n

\r\n\r\n

On November 28, 2018, Plaintiff Rajeev Malhotra\r\n(“Plaintiff”) filed an action for motor vehicle negligence and general\r\nnegligence against Defendant Efrain Navarro (“Defendant”). Plaintiff filed a\r\nFirst Amended Complaint on November 30, 2018, and Defendant filed his Answer on\r\nFebruary 25, 2019.

\r\n\r\n

\r\n\r\n

Defendant filed a motion for order compelling Plaintiff’s\r\ncompliance with a demand for a physical examination on December 8, 2020. The\r\nCourt granted that motion on May 17, 2021, ordering Plaintiff to submit to an\r\nindependent medical examination within forty (40) days of notice of that order.\r\n(5/17/21 Minute Order.)

\r\n\r\n

\r\n\r\n

The parties submitted a proposed\r\njoint witness list, exhibit list, statement of the case, and jury instructions\r\non July 20.

\r\n\r\n

\r\n\r\n

On July 26, Plaintiff filed an\r\nex-parte application for an order to reclassify the action to unlimited\r\njurisdiction. This application, however, was rejected due to improper notice.\r\n(7/26/21 Notice of Rejection.)

\r\n\r\n

\r\n\r\n

A non-jury trial was scheduled for July\r\n27. When the matter was called for hearing, Plaintiff’s counsel made an oral\r\nrequest to reclassify the matter to unlimited jurisdiction or, alternative, to\r\ncontinue the trial to allow him to file a motion for reclassification. (7/27/21\r\nMinute Order.) After conferring with the parties and reviewing the case, the\r\nCourt denied Plaintiff’s counsel’s request to reclassify. (Id.) The Court also found the parties had not\r\nprepared the required joint trial binder and had not complied with the trial\r\nrequirements set forth in the Third Amended Standing Order for limited cases. (Id.) As a result, trial was placed off\r\ncalendar but discovery remained closed. (Id.) The Court also set an OSC\r\nre reclassification of the case for August 26, 2021. (Id.) The parties\r\nwere ordered to file briefs per code prior to the next hearing date. (Id.)\r\n

\r\n\r\n

\r\n\r\n

Plaintiff\r\nfiled a brief in support of its request for reclassification on August 3.\r\nDefendant filed an opposition on August 17, only seven court days before this\r\nhearing. Plaintiff filed a reply brief on August 19.

\r\n\r\n

\r\n\r\n

II. \r\nLegal Standard

\r\n\r\n

\r\n\r\n

Code of Civil Procedure section 403.040 allows a\r\nplaintiff to file a motion for reclassification of an action within the time\r\nallowed for that party to amend the initial pleading. (Code Civ. Proc., §\r\n403.040, subd. (a).) “A party may amend its pleading once without leave of\r\ncourt at any time before an answer, demurrer, or motion to strike is filed, or\r\nafter a demurrer or motion to strike is filed if the amended pleading is filed\r\nand served no later than the date for filing an opposition to the demurrer or\r\nmotion to strike. (Code Civ. Proc., § 472, subd. (a).) If the motion is made\r\nafter the time for the plaintiff to amend the pleading, the motion may only be\r\ngranted if (1) the case is incorrectly classified; and (2) the plaintiff shows\r\ngood cause for not seeking reclassification earlier. (Code Civ. Proc., § 403.040, subd. (b).)

\r\n\r\n

\r\n\r\n

In Walker v. Superior Court (1991) 53 Cal.3d 257, 262, the California\r\nSupreme Court held that a matter may be reclassified from unlimited to limited\r\nonly if it appears to a legal certainty that the plaintiff's damages will\r\nnecessarily be less than $25,000. (Walker\r\nv. Superior Court (1991) 53 Cal.3d 257.) If there is a possibility that the\r\ndamages will exceed $25,000.00, the case cannot be transferred to limited. (Id.) This high standard is appropriate\r\nin light of “the circumscribed procedures and recovery available in the limited\r\ncivil courts.” (Ytuarte v. Superior Court\r\n(2005) 129 Cal.App.4th 266, 278.)\r\n

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In Ytuarte, the Court of Appeals examined the principles set forth in Walker and held that “the court should\r\nreject the plaintiff's effort to reclassify [an] action as unlimited only when\r\nthe lack of jurisdiction as an ‘unlimited’ case is certain and clear.” (Id. at p. 279.) Nevertheless, the\r\nplaintiff must present evidence to demonstrate a possibility that the damages\r\nwill exceed $25,000.00 and the trial court must review the record to determine\r\n“whether a judgment in excess of $25,000.00 is obtainable.” (Id.)

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III. \r\nDiscussion

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Plaintiff argues reclassification\r\nis proper because a judgment of over $25,000.00 is obtainable. (8/3/21 Plf.\r\nBrief, p. 13.) Plaintiff provides the declaration of Zhanna Sanamyan\r\n(“Sanamyan”), who states that she was employed as a paralegal with Plaintiff’s\r\ncounsel’s firm when this matter was assigned to her. (8/2/21 Sanamyan Decl., ¶\r\n2.) She states that, when she studied for the bar exam between 2019 and 2020,\r\nshe was overwhelmed, leading her to work duties and responsibilities being\r\ncompromised. (Id. at ¶ 3.) She believes this was the reason she did not\r\nobtain information about Plaintiff’s epidural injections earlier and accepts\r\nresponsibility for the error. (Id.) She further states that remote\r\nworking due to the pandemic compounded the error. (Id. at ¶ 4.) Attorney\r\nSanamyan does not state when her error was discovered.

\r\n\r\n

\r\n\r\n

As to the damages incurred,\r\nPlaintiff states that, in addition to current medical bills, he has not yet\r\nbeen billed for four epidural injections which he estimates to cost between\r\n$20,000.00 to $40,000.00. (8/3/21 Plf. Brief, p. 11.) Plaintiff also saw one\r\nadditional medical provider, Dr. Andrew Fox, in July 2021 for lower back pain\r\nwith radiculopathy symptoms. (Id. at p. 10.) Dr. Fox ordered MRIs and\r\nx-rays, for which Plaintiff has not received final billing invoices. (Id.)\r\nFurther, Plaintiff states he did not receive Dr. Fox’s “estimated cost of\r\nsurgery or the surgeries’ report” because he was “in Oregon all day” when the\r\ninitial brief was filed on August 3. (Id., Libman Decl., ¶¶ 2-3, Exh.\r\n1.) Plaintiff’s counsel states, however, that the type of surgery Plaintiff may\r\nrequire costs between $80,000.00 and $140,000.00. (Id.) Plaintiff also\r\nsubmits his complete medical record, which includes “Operative Notes” from\r\nSasan Yadegar, M.D. demonstrating that Plaintiff received lumbar epidural\r\ninjections on July 16, 2020, July 23, 2020, July 30, 2020, and August 6, 2020.\r\n(Id.) It also includes a report dated July 29, 2021 from Dr. Fox\r\nindicating that new MRIs and x-rays were needed to evaluate Plaintiff’s\r\nsymptoms and that the next course of treatment would be determined once the new\r\nimaging studies were completed and reviewed. (Id.) Notably, Plaintiff’s\r\nvisit to Dr. Fox’s office occurred two days after the previously\r\nscheduled trial.

\r\n\r\n

\r\n\r\n

The Court finds Plaintiff did not\r\ndemonstrate an award of over $25,000.00 is obtainable. First, although\r\nPlaintiff presented evidence that he received four lumbar injections, he\r\npresents no evidence as to the cost of these injections. In reply, Plaintiff points\r\nto his rejected ex-parte application for reclassification, where his attorney\r\nincluded a declaration stating that, in early June, he had attempted to obtain\r\nthe epidural billing records but had not been able to do so as of July 24.\r\n(Reply, Libman Decl., ¶ 2, Exh. 1.) Notably, the reply brief was filed on\r\nAugust 19, 2021, almost one month after the ex parte, yet is silent as to these\r\nepidural billing records.

\r\n\r\n

\r\n\r\n

Further, Plaintiff’s counsel states in his\r\ndeclaration that Plaintiff may require a surgery, namely a fusion or\r\ndiscectomy, that will cost between $80,000.00 and $140,000.00 “if the findings\r\nof the studies confirm the symptoms objectively.” (8/3/21 Plf. Brief, Libman\r\nDecl., ¶ 3.) Dr. Fox’s attached report, however, does not even reference the possibility\r\nof surgery, let alone an $80,000-$140,000 surgery. (See id.)

\r\n\r\n

\r\n\r\n

Although under Ytuarte,\r\nPlaintiff need only demonstrate the possibility that a $25,000.00 award is\r\nattainable, he must still present sufficient documentary evidence for the Court\r\nto find such an award is possible. Plaintiff has not done so here. The complete\r\nbilling record includes bills that total $4,216, and one insurance claim form\r\nfrom Dr. Fox for Plaintiff’s July 29 visit of $1,750.00, totaling $5,996.00.\r\n(8/3/21 Pf.l Brief, Libman Decl., ¶¶ 2-3, Exh. 1.) Plaintiff’s opinion\r\nregarding the medical expenses not yet billed is insufficient for the Court to\r\nreclassify this action, especially at this late stage. Notably, it appears that\r\nDr. Fox was in Oregon only one day, but Plaintiff did not submit any\r\nsupplemental papers with Dr. Fox’s “estimated costs of surgery” or “surgeries’\r\nreport” in support of their request for reclassification.

\r\n\r\n

\r\n\r\n

Given that the Court finds Plaintiff’s\r\nevidence insufficient to demonstrate an award in excess of the jurisdictional\r\nlimits of this Court is attainable, the Court does not address the other\r\narguments raised in Defendant’s opposition to reclassification.

\r\n\r\n

\r\n\r\n

Plaintiff also requests, and Defendant\r\nopposes, a trial continuance but there is no trial date set at this time.

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IV. \r\nConclusion & Order

\r\n\r\n

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The Court finds\r\nPlaintiff Rajeev Malhotra has not demonstrated reclassification to unlimited\r\njurisdiction court is proper.

\r\n\r\n

\r\n\r\n

The order to\r\nshow cause is discharged.

\r\n\r\n

\r\n\r\n

Moving party is\r\nordered to give notice.

"

Case Number: 18STLC14350    Hearing Date: May 17, 2021    Dept: 25

PROCEEDINGS: MOTION FOR AN ORDER COMPELLING PLAINTIFF’S COMPLIANCE WITH DEMAND FOR PHYSICAL EXAMINATION AND REQUEST FOR MONETARY SANCTIONS

MOVING PARTY: Defendant Efrain Navarro

RESP. PARTY: Plaintiff Rajeev Malhotra

MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION

(CCP § 2032.210, et seq.)

TENTATIVE RULING:

Defendant Efrain Navarro’s Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination is GRANTED. Plaintiff is ordered to submit to an independent physical examination within forty (40) days of notice of this order. However, Defendant’s request for sanctions is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 12, 2021 [ ] Late [ ] None

REPLY: None filed as May 13, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On November 28, 2018, Plaintiff Rajeev Malhotra (“Plaintiff”) filed an action for motor vehicle negligence and general negligence against Defendant Efrain Navarro (“Defendant”). Plaintiff filed a First Amended Complaint on November 30, 2018, and Defendant filed his Answer on February 25, 2019.

On December 8, 2020, Defendant filed the instant Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination and Request for Monetary Sanctions (the “Motion”). Plaintiff filed an Opposition on January 12, 2021. No reply brief was filed.

The Court continued the previous March 15 hearing to May 17 so that the Court could re-evaluate Defendant’s request for Plaintiff’s medical examination in light of the COVID-19 conditions at that time. (3/15/21 Minute Order.) Since then, neither party has filed any supplemental papers or briefs.

II. Legal Standard

In a case where a plaintiff seeks recovery for personal injuries, any defendant may demand one physical examination of the plaintiff if both of the following 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.” (Code Civ. Proc., § 2032.220, subd. (a).) “A demand under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the physician who will perform the examination” and must be scheduled for a date that is at least 30 days from service of the demand. (Code Civ. Proc., § 2032.220, subds. (c), (d).)

The plaintiff upon whom a demand has been made must respond within 20 days stating that he or she will (1) comply with the demand in its entirety, (2) comply as specifically modified, or (3) refuses to comply for the reasons specified in the response. (Code Civ. Proc., 2032.230, subds. (a), (b).) A plaintiff who fails to timely respond to a demand for physical examination waives any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).) If a defendant in receipt of a response deems a plaintiff’s request for modifications or refusal to submit to the demand are not warranted, the defendant may file a motion to compel compliance with the demand, which must be accompanied by a meet and confer declaration. (Code Civ. Proc., §2032.250, subd. (a).) Sanctions must be imposed on the party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for physical examination unless it finds that the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of sanctions unjust. (Code Civ. Proc., § 2032.250, subd. (b).)

III. Discussion

On July 31, 2020, Defendant’s counsel served Plaintiff’s counsel with a Demand for Physical Examination (the “Demand”) via email. (Mot., Mahlstedt Decl., ¶ 5, Exh. A.) The physical examination was scheduled for November 10, 2020. (Id.) Plaintiff served a response to the Demand on August 3, 2020, and Defendant served an objection to the response on August 6, 2020. (Id. at ¶¶ 6-7, Exhs. B, C.) On November 6, 2020, only four calendar days before the scheduled examination, Plaintiff served a second response and objection to Defendant’s Demand, which included new conditions and concerns not raised in the initial August 3rd response. (Id. at ¶ 8, Exh. D.) Plaintiff’s second response included six additional conditions for Plaintiff to appear for the examination. (Oppo., p. 3:10-12, 22-28.) The new conditions, which arose from Plaintiff’s concerns regarding contracting COVID-19 given due to his age, included the following:

1. Plaintiff will be allowed to take the examination in a hazmat suit, safety goggles, mask, face shield, and gloves to be provided by the defense by a secured carrier certified to deliver sanitary safety products;

2. The safety gear will also be provided to Plaintiff’s observer;

3. The examining physician will wear the same safety gear as Plaintiff for the duration of the examination;

4. The examining physician and the observer will maintain a distance of 6 feet at all times;

5. The examining physician and anyone at the office at the time of examination is required to present a certificate or medical record that they have tested negative for COVID-19 at least twice up to 24 hours before the examination; and

6. Defendant shall provide a sterilized room or facility at the location of the examination for Plaintiff and his observer to disrobe the hazmat suits and safety gear.

(Id.; Mot., Mahlstedt Decl., ¶ , Exh. D.)

Plaintiff did not appear for the November 10, 2020 examination. (Mot., Mahlstedt Decl., ¶¶ 12-14, Exh. H.)

After filing this Motion, on December 11, 2020, Defendant served Plaintiff with an Amended Demand for Physical Examination (the “Amended Demand”) noticing the examination for February 16, 2021 at 3:00 p.m. (Oppo., Libman Decl., ¶ 5, Exh. 4.) Plaintiff timely served Defendant with a Response and Objection to the Amended Demand on December 17, 2020. (Id. at ¶ 6, Exh. 5.) The December 17 response included the same COVID-19 related conditions listed above. (Id.)

As noted at the previous hearing, Defendant is correct that Plaintiff’s November 6, 2020 response to the first Demand was untimely under Code of Civil Procedure section 2032.230, subdivision (b). (Mot., p. 5:18-23.) However, the Court has discretion to relieve a party that fails to timely respond to a demand for physical examination where (1) “[t]he plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230” and (2) “[t]he plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2032.240, subd. (a).) Plaintiff’s November 6 response stating he would comply with the demand for a physical examination on six conditions is in substantial compliance with Section 2032.230, subdivision (a). However, despite being ordered to do so (1/26/21 Minute Order), Plaintiff’s counsel never explained why the COVID-19 concerns were not timely raised in the August 3rd response.

In any case, as discussed above, Plaintiff timely served a response with conditions to Defendant’s Amended Demand.

Defendant initially argued that Plaintiff has seen multiple health care providers during the COVID-19 pandemic and thus the conditions he sought to impose on Defendant for this IME were unreasonable. (Mot., p. 4:13-20; 2/16/21 Sep. Stmt, p. 6:13-21.)

At the previous hearing, the Court agreed that Plaintiff’s conditions, including the demand for hazmat suits and for two COVID-19 negative test results for everyone in the office on the day of his visit, were excessive but also recognized that Plaintiff’s concerns for contracting the COVID-19 virus could not be dismissed. (3/15/21 Minute Order.) During the March 15 hearing, confirmed COVID-19 infections were considerably higher and the availability of the vaccine was limited. To balance Defendant’s right to an IME and Plaintiff’s health concerns, the hearing on the Motion was continued so that Defendant’s request could be re-evaluated in light of the COVID-19 conditions at that later date. (Id.)

Since then, COVID-19 conditions have considerably improved. Confirmed infections have greatly decreased, COVID-19 related restrictions have been relaxed, and the vaccine is widely available in Los Angeles County. Notably, Plaintiff has not filed any supplemental papers renewing his objections or explaining why the conditions he previously requested should be ordered despite the improved COVID-19 metrics.

Defendant’s Motion is therefore GRANTED. Plaintiff is ordered to submit to an independent medical examination within forty (40) days of this order. (Code Civ. Proc., § 2032.240, subd. (b).)

Defendant also seeks sanctions of $11,930.00, based on five hours of attorney time billed at $250.00 per hour, one filing fee of $60.00, one parking fee of $20.00, one failure to appear fee of $600.00, and “sanctions for discovery abuse” of $10,000.00. (Mot., Mahlstedt Decl., ¶ 15.)

The Court is required to impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response and compliance with a demand for physical examination unless it finds that the one subject to the sanction acted with substantial justification or some other circumstance makes the imposition of sanctions unjust. (Code Civ. Proc., § 2032.420, subd. (c).) The Court finds that imposing sanctions on Plaintiff would be unjust. In filing an opposition, Plaintiff and his attorney were, understandably, seeking to protect a high-risk Plaintiff from contracting COVID-19 at a time when infections were considerably higher. Thus, Defendant’s request for sanctions is DENIED.

IV. Conclusion & Order

For the foregoing reasons, Defendant Efrain Navarro’s Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination is GRANTED. Plaintiff is ordered to submit to an independent physical examination within forty (40) days of notice of this order. However, Defendant’s request for sanctions is DENIED.

Moving party is ordered to give notice.

Case Number: 18STLC14350    Hearing Date: March 15, 2021    Dept: 25

HEARING DATE:    Mon., March 15, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME Malhotra v. Navarro COMP. FILED: 11-28-18

CASE NUMBER    18STLC14350 DISC. C/O: 06-27-21

NOTICE: OK MOTION C/O: 07-12-21

TRIAL DATE: 07-27-21

PROCEEDINGS    MOTION FOR AN ORDER COMPELLING PLAINTIFF’S COMPLIANCE WITH DEMAND FOR PHYSICAL EXAMINATION AND REQUEST FOR MONETARY SANCTIONS

MOVING PARTY:   Defendant Efrain Navarro

RESP. PARTY: Plaintiff Rajeev Malhotra

MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION

TENTATIVE RULING:

Defendant Efrain Navarro’s Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination is CONTINUED TO MAY 17, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Defendant’s request to compel Plaintiff’s medical examination will be re-evaluated in light of the COVID-19 conditions at the time of the continued hearing.

SERVICE

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 12, 2021 [   ] Late [   ] None

REPLY: None filed as March 11, 2021  [   ] Late [X] None

ANALYSIS:

  1. Background

On November 28, 2018, Plaintiff Rajeev Malhotra (“Plaintiff”) filed an action for motor vehicle negligence and general negligence against Defendant Efrain Navarro (“Defendant”). Plaintiff filed a First Amended Complaint on November 30, 2018, and Defendant filed his Answer on February 25, 2019.

On December 8, 2020, Defendant filed the instant Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination and Request for Monetary Sanctions (the “Motion”). Plaintiff filed an Opposition on January 12, 2021. No reply brief was filed.

At the initial hearing on January 26, the Court continued the hearing and ordered the parties to submit supplemental papers. (1/26/21 Minute Order.) Plaintiff filed supplemental papers on February 16, 2021. Plaintiff did not file any supplemental papers. 

  1. Legal Standard

In a case where a plaintiff seeks recovery for personal injuries, any defendant may demand one physical examination of the plaintiff if both of the following 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.” (Code Civ. Proc., § 2032.220, subd. (a).) “A demand under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the physician who will perform the examination” and must be scheduled for a date that is at least 30 days from service of the demand. (Code Civ. Proc., § 2032.220, subds. (c), (d).)

The plaintiff upon whom a demand has been made must respond within 20 days stating that he or she will (1) comply with the demand in its entirety, (2) comply as specifically modified, or (3) refuses to comply for the reasons specified in the response. (Code Civ. Proc., 2032.230, subds. (a), (b).) A plaintiff who fails to timely respond to a demand for physical examination waives any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).) If a defendant in receipt of a response deems a plaintiff’s request for modifications or refusal to submit to the demand are not warranted, the defendant may file a motion to compel compliance with the demand, which must be accompanied by a meet and confer declaration. (Code Civ. Proc., §2032.250, subd. (a).) Sanctions must be imposed on the party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for physical examination unless it finds that the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of sanctions unjust. (Code Civ. Proc., § 2032.250, subd. (b).)

  1. Discussion

On July 31, 2020, Defendant’s counsel served Plaintiff’s counsel with a Demand for Physical Examination (the “Demand”) via email. (Mot., Mahlstedt Decl., ¶ 5, Exh. A.) The physical examination was scheduled for November 10, 2020. (Id.) Plaintiff served a response to the Demand on August 3, 2020, and Defendant served an objection to the response on August 6, 2020. (Id. at ¶¶ 6-7, Exhs. B, C.) On November 6, 2020, only four days before the scheduled examination, Plaintiff served a second response and objection to Defendant’s Demand, which included conditions and concerns not raised in the initial August 3rd response. (Id. at ¶ 8, Exh.  D.) Plaintiff’s second response included six additional conditions for Plaintiff to appear for the examination, which arise from Plaintiff’s concerns regarding contracting COVID-19 given that he is 60 years old. (Id., p. 3:10-12, 22-28.) The additional conditions include:

  1. Plaintiff will be allowed to take the examination in a hazmat suit, safety goggles, mask, face shield, and gloves to be provided by the defense by a secured carrier certified to deliver sanitary safety products;

  2. The safety gear will also be provided to Plaintiff’s observer;

  3. The examining physician will wear the same safety gear as Plaintiff for the duration of the examination;

  4. The examining physician and the observer will maintain a distance of 6 feet at all times;

  5. The examining physician and anyone at the office at the time of examination is required to present a certificate or medical record that they have tested negative for COVID-19 at least twice up to 24 hours before the examination; and

  6. Defendant shall provide a sterilized room or facility at the location of the examination for Plaintiff and his observer to disrobe the hazmat suits and safety gear.

(Id., Mahlstead Decl., ¶ , Exh. D.)

After filing this Motion, on December 11, 2020, Defendant served Plaintiff with an Amended Demand for Physical Examination (the “Amended Demand”) noticing the exam for February 16, 2021 at 3:00 p.m. (Oppo., Libman Decl., ¶ 5, Exh.  4.) Plaintiff timely served Defendant with a Response and Objection to the Amended Demand on December 17, 2020. (Id. at ¶ 6, Exh. 5.) The December 17 response included the same COVID-19 related conditions noted above. (Id.)

As noted at the previous hearing, Defendant is correct that Plaintiff’s second response to the initial Demand is untimely under Code of Civil Procedure section 2032.230, subdivision (b). (Mot., p. 5:18-23.) However, the Court has discretion to relieve a party that fails to timely respond to a demand for physical examination where (1) “[t]he plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230” and (2) “[t]he plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2032.240, subd. (a).) Plaintiff’s second response stating he will comply with the demand for a physical examination on six additional conditions is in substantial compliance with Section 2032.230, subdivision (a). The Court notes that at the previous hearing, Plaintiff was ordered to file and serve supplemental papers explaining why he did not raise the COVID-19 related concerns in his initial August 3rd response. (1/26/21 Minute Order.) Plaintiff did not file any supplemental papers.

Defendant argues that Plaintiff has seen multiple health care providers during the course of the COVID-19 pandemic and thus the conditions he seeks to impose on Defendant for this IME are unreasonable. (Mot., p. 4:13-20; 2/16/21 Sep. Stmt, p. 6:13-21.) The Court agrees that Plaintiff’s conditions, including the demand for hazmat suits and for two COVID-19 negative test results for everyone in the office on the day of his visit, are somewhat excessive. However, the Court cannot dismiss Plaintiff’s concern for contracting the virus, especially because, as a 60-year old, he is at higher risk of complications.

  1. Conclusion & Order

For the foregoing reasons, Defendant Efrain Navarro’s Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination is CONTINUED TO MAY 17, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Defendant’s request to compel Plaintiff’s medical examination will be re-evaluated in light of the COVID-19 conditions at the time of the continued hearing.

Moving party is ordered to give notice.

Case Number: 18STLC14350    Hearing Date: January 26, 2021    Dept: 25

HEARING DATE: Tue., January 26, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Malhotra v. Navarro COMP. FILED: 11-28-18

CASE NUMBER: 18STLC14350 DISC. C/O: 06-27-21

NOTICE: OK MOTION C/O: 07-12-21

TRIAL DATE: 07-27-21

PROCEEDINGS: MOTION FOR AN ORDER COMPELLING PLAINTIFF’S COMPLIANCE WITH DEMAND FOR PHYSICAL EXAMINATION AND REQUEST FOR MONETARY SANCTIONS

MOVING PARTY: Defendant Efrain Navarro

RESP. PARTY: Plaintiff Rajeev Malhotra

MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION

(CCP § 2032.210, et seq.)

TENTATIVE RULING:

Defendant Efrain Navarro’s Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination is CONTINUED TO MARCH 15, 2021 at 10:30 a.m. in department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, both parties must file and serve supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 12, 2021 [ ] Late [ ] None

REPLY: None filed as January 22, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On November 28, 2018, Plaintiff Rajeev Malhotra (“Plaintiff”) filed an action for motor vehicle negligence and general negligence against Defendant Efrain Navarro (“Defendant”). Plaintiff filed a First Amended Complaint on November 30, 2018, and Defendant filed his Answer on February 25, 2019.

On December 8, 2020, Defendant filed the instant Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination and Request for Monetary Sanctions (the “Motion”). Plaintiff filed an Opposition on January 12, 2021. No reply brief was filed.

  1. Legal Standard

In a case where a plaintiff seeks recovery for personal injuries, any defendant may demand one physical examination of the plaintiff if both of the following 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.” (Code Civ. Proc., § 2032.220, subd. (a).) “A demand under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the physician who will perform the examination” and must be scheduled for a date that is at least 30 days from service of the demand. (Code Civ. Proc., § 2032.220, subds. (c), (d).)

The plaintiff upon whom a demand has been made must respond to within 20 days stating that he or she will (1) comply with the demand in its entirety, (2) comply as specifically modified, or (3) refuses to comply for the reasons specified in the response. (Code Civ. Proc., 2032.230, subds. (a), (b).) A plaintiff who fails to timely respond to a demand for physical examination waives any objection to the demand. (Code Civ. Proc., § 2032.240, subd. (a).) If a defendant in receipt of a response deems a plaintiff’s request for modifications or refusal to submit to the demand are not warranted, the defendant may file a motion to compel compliance with the demand, which must be accompanied by a meet and confer declaration. (Code Civ. Proc., §2032.250, subd. (a).) Sanctions must be imposed on the party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for physical examination. (Code Civ. Proc., § 2032.250, subd. (b).)

  1. Discussion

On July 31, 2020, Defendant’s counsel served Plaintiff’s counsel with a Demand for Physical Examination (the “Demand”) via email. (Mot., Mahlstedt Decl., ¶ 5, Exh. A.) The physical examination was scheduled for November 10, 2020. (Id.) Plaintiff served a response to the Demand on August 3, 2020, and Defendant served an objection to the response on August 6, 2020. (Id. at ¶¶ 6-7, Exhs. B, C.) On November 6, 2020, only four days before the scheduled examination, Plaintiff served a second response and objection to Defendant’s Demand, which included conditions and concerns not raised in the initial August 3rd response. (Id. at ¶ 8, Exh. D.) Plaintiff’s second response included six additional conditions for Plaintiff to appear for the examination. (Id.) The conditions arise from Plaintiff’s concerns regarding contracting COVID-19 at the physical examination given that she is 60 years old. (Oppo., p. 3:10-12; 22-28.)

After filing this Motion, on December 11, 2020, Defendant served Plaintiff with an Amended Demand for Physical Examination (the “Amended Demand”) noticing the exam for February 16, 2021 at 3:00 p.m. (Oppo., Libman Decl., ¶ 5, Exh. 4.) Plaintiff timely served Defendant with a Response and Objection to the Amended Demand on December 17, 2020. (Id. at ¶ 6, Exh. 5.)

Defendant is correct that Plaintiff’s second response to the initial Demand is untimely under Code of Civil Procedure section 2032.230, subdivision (b). (Mot., p. 5:18-23.) However, the Court has discretion to relieve a party that fails to timely respond to a demand for physical examination where (1) “[t]he plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230” and (2) “[t]he plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2032.240, subd. (a).) Here, Plaintiff’s second response stating he will comply with the demand for a physical examination on six additional conditions is in substantial compliance with Section 2032.230, subdivision (a). However, Plaintiff’s counsel did not attempt to explain why these concerns were not raised the initial response served on August 3rd.

In addition, because Plaintiff served an objection to both demands, Defendant must file a separate statement. (Cal. Rules of Court, rule 3.1345, subd. (a)(6).)

Thus, the parties are ordered to file and serve supplemental papers addressing the deficiencies noted above.

  1. Conclusion & Order

For the foregoing reasons, Defendant Efrain Navarro’s Motion for an Order Compelling Plaintiff’s Compliance with Demand for Physical Examination is CONTINUED TO MARCH 15, 2021 at 10:30 a.m. in department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, both parties must file and serve supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

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