This case was last updated from Los Angeles County Superior Courts on 06/15/2019 at 13:39:23 (UTC).

ADOLFO E REYES VS UNION PACIFIC RAILROAD COMPANY

Case Summary

On 05/23/2017 ADOLFO E REYES filed a Personal Injury - Other Personal Injury lawsuit against UNION PACIFIC RAILROAD COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2573

  • Filing Date:

    05/23/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

REYES ADOLFO E.

Defendants and Respondents

UNION PACIFIC RAILROAD COMPANY

DOES 1 TO 30

P & B INTERMODAL SERVICES LTD. CO. DOE 1

IT'S TECHNOLOGIES & LOGISTICS LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

RUSSO VICTOR A.

RUSSO VICTOR ANTHONY

Defendant and Respondent Attorneys

GIBBONS ROBERT JOHN

PERRI KENNETH S. ESQ.

PERRI KENNETH SCOTT

JOHNSON MICHAEL LEWIS

COVARRUBIAS MARIEL

 

Court Documents

PLAINTIFFS NOTICE OF POSTING ADVANCE JURY FEES

3/29/2018: PLAINTIFFS NOTICE OF POSTING ADVANCE JURY FEES

PLAINTIFF'S NOTICE OF CONTINUANCE OF MOTION TO COMPEL DEPOSITION OF DEFENDANT UNION PACIFIC'S EMPLOYEE ALICE HERNANDEZ AND PRODUCTION OF DESIGNATED DOCUMENTS; MEMORANDUM OF POINTS AND AUTHORITIES; DEC

9/4/2018: PLAINTIFF'S NOTICE OF CONTINUANCE OF MOTION TO COMPEL DEPOSITION OF DEFENDANT UNION PACIFIC'S EMPLOYEE ALICE HERNANDEZ AND PRODUCTION OF DESIGNATED DOCUMENTS; MEMORANDUM OF POINTS AND AUTHORITIES; DEC

Substitution of Attorney

10/10/2018: Substitution of Attorney

Declaration

10/11/2018: Declaration

Unknown

11/8/2018: Unknown

Minute Order

11/8/2018: Minute Order

Notice of Case Management Conference

12/18/2018: Notice of Case Management Conference

Minute Order

2/21/2019: Minute Order

Declaration

2/27/2019: Declaration

Request

2/27/2019: Request

Order

4/4/2019: Order

REQUEST FOR DISMISSAL

11/17/2017: REQUEST FOR DISMISSAL

AMENDMENT TO COMPLAINT

10/18/2017: AMENDMENT TO COMPLAINT

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

5/23/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

SUMMONS

5/23/2017: SUMMONS

AMENDMENT TO COMPLAINT

6/27/2017: AMENDMENT TO COMPLAINT

PROOF OF SERVICE OF SUMMONS

7/3/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE SUMMONS

7/12/2017: PROOF OF SERVICE SUMMONS

38 More Documents Available

 

Docket Entries

  • 04/04/2019
  • Order (Order Granting Plaintiff's Motion for Issuance of Letter Rogatory to Take Deposition of Motrec International, Inc. Within the Foreign Nation of Canada); Filed by Adolfo E. Reyes (Plaintiff)

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  • 04/04/2019
  • Request (Request for International Judicial Assistance (Letter Rogatory) to Obtain Discovery from Motrec International, Inc. in the Province of Quebec); Filed by Adolfo E. Reyes (Plaintiff)

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  • 03/08/2019
  • at 08:30 AM in Department 37; Hearing on Motion - Other (Motion for Issuance of Letter Rogatory to Take Deposition of Motrec International, Inc. within the Foreign Nation of Canada) - Not Held - Advanced and Continued - by Court

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  • 03/08/2019
  • at 1:30 PM in Department 37; Hearing on Motion for Summary Judgment

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  • 03/08/2019
  • at 1:30 PM in Department 37; Hearing on Motion - Other (Motion for Issuance of Letter Rogatory to Take Deposition of Motrec International, Inc. within the Foreign Nation of Canada) - Held

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  • 03/08/2019
  • Minute Order ( (Hearing on Motion - Other Motion for Issuance of Letter Rogat...)); Filed by Clerk

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  • 02/27/2019
  • Declaration (Declaration (supplemental) of Victor A. Russo in Support of Plaintiff's Motion for Issuance of Letter Rogatory to Take Deposition of Motrec International, Inc. Within the Foreign Nation of Canada); Filed by Adolfo E. Reyes (Plaintiff)

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  • 02/27/2019
  • Request ( for International Judicial Assistance (Letter Rogatory) to Obtain Discovery from Motrec International, Inc. in the Province of Quebec); Filed by Adolfo E. Reyes (Plaintiff)

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  • 02/27/2019
  • Brief (Supplemental Brief in Support of Motion for Issuance of Letter Rogatory to Take Deposition of Motrec International, Inc. Within the Foreign Nation of Canada); Filed by Adolfo E. Reyes (Plaintiff)

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  • 02/27/2019
  • Declaration (Declaration of Jessica Danielski in Support of Plaintiff's Motion for Issuance of Rogatory Letter to Take Deposition of Motrec International, Inc. Within the Foreign Nation of Canada); Filed by Adolfo E. Reyes (Plaintiff)

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63 More Docket Entries
  • 07/18/2017
  • PROOF OF SERVICE SUMMONS

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  • 07/12/2017
  • Proof-Service/Summons; Filed by Adolfo E. Reyes (Plaintiff)

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  • 07/12/2017
  • PROOF OF SERVICE SUMMONS

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  • 07/03/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 07/03/2017
  • Proof-Service/Summons; Filed by Adolfo E. Reyes (Plaintiff)

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  • 06/27/2017
  • AMENDMENT TO COMPLAINT

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  • 06/27/2017
  • Amendment to Complaint; Filed by Adolfo E. Reyes (Plaintiff)

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  • 05/23/2017
  • Complaint; Filed by Adolfo E. Reyes (Plaintiff)

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  • 05/23/2017
  • SUMMONS

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  • 05/23/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC662573    Hearing Date: December 30, 2019    Dept: 37

HEARING DATE: December 30, 2019

CASE NUMBER: BC662573

CASE NAME: Adolfo E. Reyes v. Union Pacific Railroad Company, et al.

MOVING PARTIES: Defendant Union Pacific Railroad Company

OPPOSING PARTY: Plaintiff Adolfo Reyes

TRIAL DATE: September 15, 2020

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Further Response from Plaintiff to Request for Admissions, Set One and Form Interrogatories, Set Two

OPPOSITION: December 16, 2019

REPLY: December 20, 2019

TENTATIVE: Defendant’s motion to compel further responses is GRANTED in part as to requests 1, 13, 18, 19, 20 and 23 and form interrogatory number 17.1 related to these requests. The motion is DENIED as to requests 6 and 15 and form interrogatory number 17.1 related to these requests.

BACKGROUND

This action arises from Plaintiff, Adolfo Reyes’ (“Plaintiff”) employment with Defendant, Union Pacific Railroad. (“Defendant”) Plaintiff alleges that on September 11, 2016, Plaintiff was working at Defendant’s location at 4341 E. Washington Blvd, Los Angeles, CA 90023 and while operating a “Cone Vehicle,” was injured. Plaintiff alleges that Defendant was negligent by failing to provide him a safe place to work.

Plaintiff’s Complaint, filed May 23, 2017, alleges two causes of action: (1) negligence under the Federal Employer’s Liability Act (45 U.S.C. § 51), and (2) general negligence.

On August 28, 2019, Defendant personally served Plaintiff with Request for Admissions, Set One and Form Interrogatories, Set Two. Defendant now moves for an order compelling Plaintiff to provide further responses to these requests and interrogatories. Plaintiff opposes the motion.

DISCUSSION

I. Legal Standards

Under the Discovery Act, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

Each response to a request for admission shall “be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220.) Specifically, each answer shall: “(1) admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party, (2) deny so much of the matter involved in the request as is untrue, (3) specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.” (Code Civ. Proc., § 2033.220(b)(1)-(3).)

On receipt of responses to request for admissions, the propounding party may move for an order compelling a further response if that party deems either or both of the following to be true: “(1) an answer to a particular request is evasive or incomplete, (2) an objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290(a)(1)-(2).)

Similarly, on receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (See Code Civ. Proc., §§ 2030.300, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

II. Meet and Confer Efforts

A motion to compel further responses to request for admissions or interrogatories “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., §§ 2030.300, subd (b)(1), 2033.290, subd. (b)(1).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.) Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433-34, citing Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1437.)

Defendant submits the declaration of Laura Gale Simpson to demonstrate that it has met its statutory meet and confer requirements. Simpson attests that after receiving Plaintiff’s initial responses, her office sent Plaintiff’s counsel a meet and confer letter on October 18, 2019 outlining the deficiencies Defendant found in the responses. (Simpson Decl., ¶ 8, Exhibit G.) Simpson attests that after receiving Plaintiff’s supplemental responses, her office sent Plaintiff’s counsel another meet and confer letter on November 8, 2019 addressing deficiencies found in these responses. (Id., ¶ 10, Exhibit I.)

Accordingly, Defendant has sufficiently demonstrated that it met and conferred prior to bringing the instant motion.

III. Procedural History

On August 28, 2019, Defendant personally served Plaintiff with Request for Admissions, Set One and Form Interrogatories, Set Two. (Simpson Decl., ¶¶ 2-3, Exhibits A-B.) Plaintiff served unverified responses to these requests and interrogatories on September 27, 2019. (Simpson Decl., ¶¶ 4-5, Exhibits C-D.) Plaintiff served verifications to these responses on October 29, 2019. (Id., ¶¶ 6-7, Exhibit E-F.)

On November 1, 2019, Plaintiff served supplemental unverified responses in response to Defendant’s October 18, 2019 meet and confer letter. (Simpson Decl., ¶ 9, Exhibit H.) On November 15, 2019, Plaintiff served verified second supplemental responses in response to Defendant’s second meet and confer letter. (Simpson Decl., ¶ 11, Exhibit J.)

On December 6, 2019, the court granted Defendant’s ex-parte to advance the hearing date on this motion and advanced the hearing to December 30, 2019.

IV. Analysis

Defendant moves the court for an order compelling Plaintiff to further respond to request for admissions numbers 1, 3, 6, 13, 15, 18, 19, 20 and 23 on the grounds that Plaintiff’s response to each request is evasive, incomplete and/or without merit. (Motion, 5-7.) Defendant contends that each respond does not comply with Code of Civil Procedure section 2033.220 in that the responses do not specify which portions of the request(s) that Plaintiff admits or denies. (Id.) By way of example, Defendant contends that Plaintiff’s response to request number 13, wherein he states “Plaintiff does not deny what is written in his medical records about the condition of his spine …” is not compliant with Code of Civil Procedure section 2033.220. (Motion, 6.)

Plaintiff contends that no further response is required to any request, on the grounds that Defendant’s request for admissions are poorly drafted and largely objectionable as vague and ambiguous. (Opposition, 3-6.) Plaintiff also contends that no further response is required to any interrogatory on the grounds that no response to form interrogatory number 17.1 is required for any request for admissions that are objectionable in their entirety. (Opposition, 7.)

Defendant moves to compel a further response to each of the following requests:

  1. Request Number 1: “Admit that YOU have had intermittent low back (lumbar spine) pain since a motor vehicle accident you were involved in, which took place approximately in 1989 as YOU reported to Bay Rehabilitation on June 29, 2012.”

  2. Request Number 6: Admit YOU partially related YOUR back pain to YOUR work since at least 2012.

  3. Request Number 13: Admit YOU had a herniated disc in YOUR spine before the INCIDENT.

  4. Request Number 15: Admit that YOU partially related YOUR neck (cervical spine) pain to YOUR work SINCE AT LEAST 2012.

  5. Request Number 18: Admit that YOU have had chronic neck pain following a motor vehicle accident in which you were involved in, which took place approximately in 1989 as YOU reported to Bay Rehabilitation on June 29, 2012.

  6. Request Number 19: Admit that YOU had radiating pain to YOUR lower extremities (legs) as far back as 2012.

  7. Request Number 20: Admit that YOU have had chronic radiating pain to YOUR lower extremities since at least 2012.

  8. Request Number 23: Admit that YOU have had chronic radiating pain to YOUR upper extremities since at least 2012.”

(see Separate Statement in Support of Motion.)

As to each request, Plaintiff responded by stating either that he “does not deny” what is written in the medical records about the condition the request discusses or that he admits what is written in his medical records “to the extent” that records discuss the condition the request discusses. Plaintiff did not provide a second supplemental response as to a few of the requests. (Id.)

Defendant also contends that Plaintiff’s response to form interrogatory number 17.1 is deficient because it only includes a response as to request for admissions numbers 29 and 30, which Defendant does not contend to be deficient. Defendant contends that a response to form interrogatory number 17.1 is required as to each of the requests it claims requires a further response, as each request is not an unqualified request for admission. (Motion, 7-8.) Plaintiff contends that further responses to form interrogatory number 17.1 is not required because the related requests for admissions were so objectionable that Plaintiff was unable to “frame intelligent replies.” (Opposition, 7.)

Given the foregoing, the court finds that Plaintiff’s responses to each request for admissions are deficient, except as to requests 6 and 15. “A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. [citation] Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 711, 783.)

Here, while the court agrees that Defendant’s requests are “somewhat ambiguous,” the nature of what most of the requests seek is apparent. Phrases such as “chronic pain” and “intermittent pain” have ordinary meanings, such that Plaintiff should be able to admit or deny these requests. If Plaintiff does not have sufficient information admit or deny the entire request, he may also respond as such and qualify the portions he does admit or deny.

By way of example, Plaintiff appears to understand Defendant’s request number 13 asking Plaintiff to admit that he had a “herniated disc,” as Plaintiff’s second supplemental response indicates that he admits what is written in his records to the extent that they discuss a “herniated disc.” (see Separate Statement in Support of Motion, Request Number 13.) Accordingly, Plaintiff’s argument that Defendant’s requests are generally vague and ambiguous fails.

Finally, as to request numbers 6 and 15, the court agrees with Plaintiff that “partially related” is vague and ambiguous. The court is unable to determine what Defendant means by “partially related.” “Partially” carries with it an ordinary meaning of “in part” and “related” carries an ordinary meaning of “associated” or “connected.” Further, each request asks Plaintiff to admit that he “partially related” his pain to his work, without a reference as to whom Plaintiff is allegedly relating his pain and work to, or from which medical record or records Defendant appears to have obtained this notion of “partially related” pain and work. Accordingly, the court will not order Plaintiff to provide a further response to requests 6 and 15, and to form interrogatory number 17.1 in connection with these requests.

Defendant’s motion to compel further responses is GRANTED in part as to requests 1, 13, 18, 19, 20 and 23 and form interrogatory number 17.1 related to these requests. The motion is DENIED as to requests 6 and 15 and form interrogatory number 17.1 related to these requests. Defendant to give notice.

Case Number: BC662573    Hearing Date: December 09, 2019    Dept: 37

HEARING DATE: December 9, 2019

CASE NUMBER: BC662573

CASE NAME: Adolfo E. Reyes v. Union Pacific Railroad Company, et al.

MOVING PARTIES: Defendant Union Pacific Railroad Company

OPPOSING PARTY: Plaintiff Adolfo Reyes

TRIAL DATE: January 14, 2020

PROOF OF SERVICE: OK

MOTION: Defendant’s Ex Parte Motion to Compel Plaintiff to Submit to Independent Medical Examination Without Restriction on Medical Questions

OPPOSITION: Timely by December 6, 2019 at 4:30pm.

TENTATIVE: Defendant’s Motion to Compel Plaintiff to Submit to IME, Without Restrictions on Medical History Questions is GRANTED, in part.

Plaintiff is ordered to attend a medical examination by Wong. Wong’s examination will consist of a questioning regarding Plaintiff’s medical history but will NOT require Plaintiff to complete a “questionnaire regarding general health, injury, pain and employment history.”

Plaintiff is otherwise ordered to attend the medical examination as noticed.

STATEMENT OF THE CASE

This action arises from Plaintiff, Adolfo Reyes’ (“Plaintiff”) employment with Defendant, Union Pacific Railroad. (“Defendant”) Plaintiff alleges that on September 11, 2016, Plaintiff was working at Defendant’s location at 4341 E. Washington Blvd, Los Angeles, CA 90023 and while operating a “Cone Vehicle,” was injured. Plaintiff alleges that Defendant was negligent by failing to provide him a safe place to work.

Defendant served a Demand for Independent Medical Examination (“IME”). (Declaration of Laura Gale Simpson in support of Motion (“Simpson Decl.”), ¶ 4, Exhibit A.) Pursuant to the Demand for IME, Plaintiff was to present for an IME by Albert Wong, M.D. (“Wong”), a neurosurgeon, at 8436 W. 3rd Street, Suite 800, Los Angeles, CA 90048 at December 9th, 2019 at 4:00 p.m. (Id. at pp. 1-2.) Wong’s examination would be limited to Plaintiff’s alleged injuries sustained as a result of the accident giving rise to this action, and that no invasive procedures would be performed. (Id. at p. 2.) Further, Wong’s examination was to include questioning about Plaintiff’s medical history as well as a questionnaire regarding general health, injury and pain. (Id.)

On November 12, 2019, Plaintiff’s counsel responded to the Demand for IME and indicated that Plaintiff would attend. (Motion, 3; Simpson Decl, ¶ 5, Exhibit B.) However, Plaintiff’s counsel contested the terms of the examination and stated that Wong should be restricted from questioning Plaintiff about his medical history. (Id.) Plaintiff’s counsel also contended that no questioning would be allowed except regarding his physical condition from July 16, 2018 until the date of the examination. (Id.) Further, Plaintiff counsel indicated that if further questioning was necessary, defense counsel were to submit written questions at least ten days in advance so that Plaintiff’s counsel may review. (Id.)

After further meet and confer, Defense counsel contends that Plaintiff’s counsel would not withdraw the above proposed restrictions with regard to Plaintiff’s IME. Accordingly, Defendant now moves for an order compelling Plaintiff to submit to IME, without restriction as to questioning on medical history. Plaintiff opposes the motion.

DISCUSSION

I. Legal Standards

Civil discovery by physical and mental examinations is governed by Code of Civil Procedure, sections 2032.010 through 2032.650. As a general matter, a defendant may obtain a physical or mental examination of the plaintiff if the plaintiff has placed his or her physical or mental condition in controversy. (Code Civ. Proc., section 2032.020, subd. (a); Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258.)

A defendant has a right to demand one physical examination of the plaintiff in a suit for personal injuries if the medical examination does not include any painful or intrusive procedure and is conducted within seventy-five (75) miles of the plaintiff’s residence. (Code Civ. Proc., § 2032.220, subd. (a); Pratt v. Union Pacific Railroad Co. (2008) 168 Cal.App.4th 165, 181 (Pratt).) The plaintiff has a right to the presence of counsel during the examination. (Pratt, ibid.) Additional physical examinations may be obtained with leave of court. (Code Civ. Proc., § 2032.310, subd. (a).) A motion for an examination under section 2032.310 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., § 2032.310, subd. (b).)

II. Meet and Confer Efforts

The motion must be accompanied by a declaration showing a reasonable and good faith attempt to arrange an examination by agreement under Code of Civil Procedure, section 2016.040. (Code Civ. Proc., § 2032.250, subd. (b).) A meet and confer declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.) A reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

Defendant submits the declaration of Laura Gale Simpson support of the instant motion. Simpson attests that Defendant has made multiple attempts to meet and confer with Plaintiff in order to obtain Plaintiff’s agreement to submit to IME without restriction as to questioning on medical history. (Simpson Decl., ¶¶ 6, 8, Exhibit C, E.) Simpson attests that in meeting and conferring with Plaintiff, she indicated that questioning on medical history was necessary because history-taking “provides essential information about the possible etiology of the medical condition.” (Simpson Decl., ¶ 7, Exhibit C.) Simpson further attests that Plaintiff’s counsel responded on November 22, 2019 to the first meet and confer letter by stating that questioning on Plaintiff’s medical history was not necessary because Wong should be able to discern Plaintiff’s medical history from his medical records and deposition testimony, without questioning Plaintiff at the IME regarding his medical history. (Simpson Decl., ¶ 7, Exhibit D.) Plaintiff’s counsel has not responded to Defendant’s second meet and confer effort. (Simpson Decl., ¶ 9.)

Simpson’s declaration demonstrates that the parties discussed the subject motion but were unable to come to an agreement and is sufficient to meet the statutory requirement.

III. Analysis

The court may only grant a motion for a physical examination under section 2032.310 upon a showing of good cause. (Code Civ. Proc., § 2032.320, subd. (a).) Here, Defendant has demonstrated good cause for the court to order Plaintiff to submit to physical examination, as modified below.

Defendant contends that good cause exists to compel Plaintiff to submit to physical examination without restriction because Plaintiff’s proposed restrictions on medical examination “runs contrary to the practicalities of a physical exam and commonly accepted standards.” (Motion, 5-7.) Defendant concedes that Code of Civil Procedure section 2032.220, which allows for physical examination, does not explicitly permit taking a medical history and that Wong is expected to have knowledge of Plaintiff’s medical records prior to conducting the examination. (Motion, 5.) However, Defendant asserts that Wong may have questions for Plaintiff after review of his records, which are substantial, and that preparing questions for Plaintiff’s counsel to review ahead of the examination would “weaken the credibility of Dr. Wong’s anticipated opinions and medical report.” (Motion, 5-6.) Defendant asserts if Wong is required to examine Plaintiff subject to the proposed restrictions and prepare his report, Defendant would be unduly prejudiced. (Motion, 6.)

Here, Defendant’s Demand for IME is procedurally proper under Code of Civil Procedure section 2032.220. The demand indicates that it does not include any testing or procedure that is painful, protracted or intrusive. Further, the examination is to be conducted in Beverly Hills, California, and Plaintiff’s counsel has not objected to the location as beyond 75 miles from Plaintiff’s residence. The demand also specifies the time, place, manner, conditions, scope and nature of the examination, as described above. Further, the demand specifies Wong’s medical specialty. Defendant’s Demand for IME specifies that the following would be included in the examination:

  1. The examinee is requested to complete a questionnaire regarding general health, injury, pain and employment history.

  2. The physician obtains a history from the examinee.

  3. The examinee’s height and weight are obtained.

  4. circumferential measurements of extremities are obtained.

  1. A general physical examination. The examinee is instructed during the physical examination not to exceed comfortable range of motion or pain tolerance during any activity as requested by the physician or his assistant.

  1. A neurological examination including, mental exam, cranial nerve exam, motor exam, sensory exam, reflex exam, cerebral exam, and gait exam.

  2. X-rays may be requested and obtained if approved by the examinee.

(see Defendant’s Demand for IME, p. 2.)

Plaintiff contends on opposition that an IME including questioning on Plaintiff’s medical history is not warranted and is an invasion of privacy. Specifically, Plaintiff contends that: (1) the law allowing for Defendant to conduct a physical examination only specifies that it is to be a “physical” examination. (Opposition, 3-8.) Plaintiff further contends that no questioning is necessary because Wong should already have all he needs to discern Plaintiff’s medical history from Plaintiff’s discovery responses, deposition and depositions of his treating physicians. (Opposition, 9-10.) Finally, Plaintiff contends that allowing questioning into his medical history beyond his current complaints would invade his right to privacy, as Plaintiff has not specifically placed other portions of his medical history at issue other than those specific areas he contends are injured in this action. (Opposition, 10-11.)

In support of these contentions, Plaintiff mainly relies on the matter Britt v. Superior Court (1978) 20 Cal.3d 844 (Britt) for the proposition that questioning into his entire medical history, encompassing all medical conditions, is improper and an invasion of Plaintiff’s privacy.

In Britt, Plaintiffs, homeowners, brought an action against an airport, alleging that the noise, vibrations and air pollution associated with the airport caused plaintiffs to suffer diminution of property value, emotional disturbance and other personal injuries. (Id., at p. 849.) Defendant airport served Plaintiffs with interrogatories, some of which asked plaintiffs to respond to the following question:

“1.37 Other than the personal injuries which are claimed by you to have proximately resulted from the matters alleged in your complaint in this action, have you ever received any kind of injury following which you sought medical treatment or medical examination?” (Original italics.)

“1.38 If the answer to number 1.37 is yes, please state:

“(a) The date of each such injury.

“(b) The nature of each such injury.

“(c) The names and addresses of each doctor, physician, or healer who treated you for each such injury.

“(d) The name and address of each hospital at which you were a patient or where you were treated for each such injury.

“(e) A brief description of where and how you received each such injury.

“(f) What drugs, narcotics, or other medications were prescribed, given to, or utilized by you with respect to any such injury or illness.”

(Britt, supra, 20 Cal.3d 844 at fn. 1.) After several plaintiffs refused to answer these and other questions, defendants moved to compel, which was granted by the trial court. (Id. at 851.) The trial court specifically ordered Plaintiff to respond to these interrogatories. (Id.) In issuing a peremptory writ directing that the trial court’s order be vacated, the Supreme Court of California found that such an order was overbroad and invaded Plaintiffs’ rights to privacy. (Id. at 862-864.) The Supreme Court of California further found that Plaintiffs did not waive their rights to their lifetime medical history by filing suit in this case and, as such, the trial court order was improper. (Id.)

Here, Defendant’s Demand for IME is not exactly comparable to the facts of Britt. First, Britt involves interrogatories regarding Plaintiff’s medical history, which specifically ask Plaintiff to disclose any other injury he or she has ever sustained, without limitation as to time. In comparison, questioning about Plaintiff’s medical history in the instant action is only to comprise a portion of Wong’s examination. According to the Demand for IME, Wong was to also conduct a physical examination, conduct a measurement of Plaintiff’s extremities, and do other testing if Plaintiff consents.

However, Defendant’s Demand for IME does specific that Plaintiff was to also respond to a “questionnaire” regarding his “general health, injury, pain and employment history.” The court finds this portion of the proposed IME similar to the trial court order that the Supreme Court disapproved of in Britt. Specifically, “general medical history” is sufficiently broad. As such, the court is unable to determine that such a questionnaire will not unnecessarily infringe Plaintiff’s right to privacy. Accordingly, the court denies Defendant’s motion with respect to this portion of the Demand for IME only and orders that Plaintiff does not have to respond to any “questionnaire regarding general health.”

Given the foregoing, the court finds that Defendant has demonstrated good cause for the court to order Plaintiff to submit to Wong’s physical examination, without restriction as to medical history questioning by Wong. As discussed above, Plaintiff will not be required to complete a “questionnaire regarding general health.” Accordingly, Defendant’s Motion is granted in part.

CONCLUSION

Defendant’s Motion to Compel Plaintiff to Submit to IME, Without Restrictions on Medical History Questions is GRANTED in part. Plaintiff is ordered to attend a medical examination by Wong, without restriction as to questioning on medical history by Wong. Plaintiff is not required to complete a questionnaire regarding “general health.” The medical examination is to otherwise proceed as noticed.