(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.)
PLAINTIFF MILTON WHITE’S COMBINED OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF
MEMORANDUM OF POINTS AND AUTHORITIES
Defendants’ Ex Parte Application to Compel the Independent Medical Examination of plaintiff, is both procedurally defective and premature, and should thus be denied in its entirety. Defendants’ motion to compel cannot be made on an ex parte basis, but requires a noticed motion. Defendants’ motion is also premature, as the date noticed for the medical examination of car accident victim plaintiff Milton White has not yet arrived.
Further, defendants’ proposed motion to compel submitted with their Ex Parte Application is equally defective, in that it 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).
Additionally, defendants’ request for monetary sanctions must be denied, not only because of the procedural impropriety of their Ex Parte Application, but also because the prejudice they complain of was visited upon themselves by their own dilatory conduct and their stubborn refusal to adhere to the statutory requirements governing the scope and conduct of defense medical examinations.
Plaintiff’s objections to defendants’ Notice of Independent Medical Examination of plaintiff are well-founded. Defendants could cure the defects in their Notice simply by agreeing to comply with the Code requirements, but they choose not to do so. They are not entitled to be rewarded for their intransigence. (See Part 2 of 5.)
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