SAFWAT GENDY DDS ET AL VS HOLIDAY ROCK INC ET AL

Tentative Rulings

Case Number: ****2652 Hearing Date: October 4, 2021 Dept: 29

TENTATIVE RULING

The Motions to Enforce Subpoena and Compel Depositions are both GRANTED IN PART.

The California Spine Institute Medical Center is ordered to comply with both subpoenas within 10 days.

The motion to impose monetary sanctions against plaintiffs Soheir GENDY and Safwat Gendy is DENIED.

This court finds that the sanctions are not appropriate in this case because the refusal of the California Spine Institute Medical Center does not appear to have been done in bad faith.

Under CCP ;1987.2, " . . . the court may in its discretion award the amount of reasonable expenses incurred in making or opposing the motion, including reasonable attorney\'s fees, if the court find the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive. CCP ;1987.2 (a).

Here, the motion before the court was not opposed by neither of the plaintiffs, and therefore, imposing sanctions is not mandatory. Furthermore, once the subpoena was served, it was on the plaintiff to file a protective order to narrow the scope of the subpoena. However, plaintiff did not file a protective order to narrow the scope of the subpoena, nor did plaintiff oppose this motion to compel compliance. In this case, sanctions are not mandatory, and therefore, will not be imposed.

Thus, the Court orders compliance with the subpoena within 10 days of this order, and no monetary sanctions are to be imposed.

b"

Case Number: ****2652 Hearing Date: August 26, 2021 Dept: 29

TENTATIVE

After considering the evidence and moving papers presented, the Court denies Defendant Holliday Rock’s Motion To Compel Soheir Gendy's Appearance At Additional Medical Examination and Motion To Compel Safwat Gendy's Appearance At Additional Medical Examination. (Code Civ. Proc., ; 2032.310(c).)

Legal Standard

“As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” (Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 258.)

Code Civ. Proc., section 2032.310, provides:

(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.

Furthermore, Code Civ. Proc., section 2032.320(a), provides that “[t]he court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Id.)

Discussion

Here, Defendant Holliday Rock moves the Court for orders compelling Plaintiffs to submit to additional Independent Medical Examinations (Neurological), pursuant to Code Civ. Proc., sections 2032.310 and 2032.320.

In the instant case, Plaintiffs claim that they suffered personal injuries as a result of Subject Incident. Accordingly, based upon Code of Civil Procedure section 2032.220(a), Defendants were entitled to one physical examination of Plaintiffs without leave of Court, which was completed on February 6, 2020, by Defendants' orthopedic expert Dr. Grogan (the “First IME”).

Next, Defendant Holliday Rock alleges that subsequent to the First IME, the Plaintiffs have made ongoing neurological complaints which have placed their medical condition(s), future prognosis, and the overall exposure in this matter in limbo. Thus, the Defendant argues that good cause exists for the second IMEs with neurologist Dr. Kowell, without which, Defendant Holliday Rock will be severely prejudiced.

On June 23, 2021, Defendant served a Demand for IME on Plaintiffs to appear on July 29, 2021, for the subject IMEs with Dr. Kowell, pursuant to Code Civ. Proc., section 2032.220(a). (Barcena Decl. ¶ 12). On June 25, 2021, Plaintiffs’ counsel objected to the subject IMEs. (Barcena Decl. ¶ 13).

On August 2, 2021, the Defendant Holliday Rock filed the pending motions. However, the Notices of the pending motions were not personally served on the Plaintiffs as required by Code Civ. Proc., section 2032.310(c). (See generally Defendant’s Motions for to Compel IME (for Proofs of Service). Notice and hearing are deemed essential to protect against unreasonable examinations and to safeguard the examinee's bodily and mental privacy and other constitutional rights. (See Reuter v. Sup.Ct. (Tag Enterprises) (1979) 93 Cal.App.3d 332, 343.)

Accordingly, the Court denies Defendant Holliday Rock’s Motion To Compel Soheir Gendy's Appearance At Additional Medical Examination and Motion To Compel Safwat Gendy's Appearance At Additional Medical Examination.

Conclusion

Therefore, the Court DENIES Defendant Holliday Rock’s Motion To Compel Soheir Gendy's Appearance At Additional Medical Examination and Motion To Compel Safwat Gendy's Appearance At Additional Medical Examination. (Code Civ. Proc., ; 2032.310(c).)

Moving party is ordered to give notice.