(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.)
Finally, defendants’ Ex Parte Application for an Order to Continue Trial, Discovery Cut-Off and Time to Designate Expert Witnesses is without merit, as there is no reasonable basis for the relief they are seeking. If defendants would simply agree to conduct their medical examination of the plaintiff in conformity with the code requirements, there is no reason why the defense medical examination of plaintiff cannot proceed on October 24, 2006, thereby obviating the need for any continuance. If, on the other hand, defendants remain steadfast in their refusal to comply with the Code as it relates to the scope and conduct of defense medical examinations, their position can only be construed as a stalling tactic to avoid mediation and trial.
Such tactics do not warrant continuances that would be substantially prejudicial to the Plaintiff, who is prepared to participate immediately in a meaningful mediation in an effort to settle this case and, if necessary, to proceed to trial. The plaintiff should not be further prejudiced by Defendants’ transparent stalling tactics. Accordingly, Defendants’ Ex Parte Application for a Continuance of Trial, Discovery Cut-Off and Time to Designate Expert Witnesses should also be denied in its entirety.
A MOTION TO COMPEL A MEDICAL EXAMINATION CANNOT BE MADE EX PARTE; IT REQUIRES ADHERENCE TO NOTICED MOTION PROCEDURE
Code of Civil Procedure § 2032.250(a) states:
If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff’s response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant my move for an order compelling compliance with the demand.
As explained by Weil & Brown, Civil Procedure Before Trial (The Rutter Group, 2005), Ch. 8, § 8:1559-1560:
Motion Procedure: The party seeking the examination must follow the usual notice motion procedure.
Notice of Motion: The notice of motion must state the time, place, identy and speciality of the examiner, and the manner, conditions, scope and nature of the examination [Ca Civ Pro § 2032.310(b)].
Separate statement of disputed matters required: The notice of motion must be accompanied by a separate document setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled. [See Ca Rules of Court Rule 335(a)(6).] Ibid. § 8:1561.5. (See Part 3 of 5.)
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