Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)
There is no statutory authority permitting Defendants to apply ex parte for an order compelling the medical examination of the Plaintiff, thus Defendants’ Ex Parte Application for such an order is fatally defective. Additionally, since Defendants’ proposed Notice of Motion and Motion to Compel, submitted concurrently with their Ex Parte Application, fails to state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination” as required by CCP § 2032.310(b), and also fails to include a separate statement of disputed matters setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled, as required by California Rules of Court Rule 335(a)(6), it too is fatally defective.
It would be anomalous, if not absurd, to grant Defendants’ request for an order shortening time to hear a noticed motion to compel that is, in and of itself, procedurally improper and defective.
Moreover, because the date noticed by Defendants for the medical examination of the Plaintiff, on October 24, 2006, has not yet arrived, Defendants’ motion would in any event be premature because the issue has not yet ripened. Plaintiff has indicated to Defendants that he will submit to a defense medical examination provided that Defendants comply with the code sections governing medical examinations.
Because there is no statutory basis for Defendants’ Ex Parte Application, and because the alternative relief Defendants are seeking for an order shortening time to hear a motion to compel is futile in light of the fatal defects in the Defendants’ Notice of Motion and Motion to Compel, Defendants’ Ex Parte Application must be denied in its entirety. (See Part 4 of 5.)
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