Judge: Anne Hwang, Case: 21STCV07659, Date: 2024-06-24 Tentative Ruling

Case Number: 21STCV07659    Hearing Date: June 24, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            On February 19, 2021, Plaintiff Yaniv Assouline (“Plaintiff”) filed a complaint against Defendant Ellen Heleen (“Defendant”) for negligence related to a motorcycle and motor vehicle accident.

            Defendant now moves for leave to conduct a second physical examination of Plaintiff. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220, subd. (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.  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.”  (Civ. Proc., § 2032.310, subds. (a)-(b).) 

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [“the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary”].) A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  And “[a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (Id. at p. 839.)   

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿¿ 

MEET AND CONFER

The Declaration of Celeena Pompeo, Defendant’s counsel, states that she emailed Plaintiff’s counsel on November 1, 2023 and November 7, 2023 regarding the subject examination. (Pompeo Decl. ¶ 2-3, Exh. A, B.) The email contained a detailed justification of good cause. Therefore, it appears Defendant’s counsel made a good faith attempt to resolve the issue.

DISCUSSION

            Plaintiff previously attended an orthopedic physical examination with Defendant’s examiner, Dr. Michael Weinstein on May 1, 2023. The exam included an evaluation of Plaintiff’s neck, right shoulder, right hand/middle, ring, little fingers, and low back. On July 25, 2023, Plaintiff underwent cervical spine surgery. Defendant now seeks leave to examine Plaintiff a second time with Dr. Weinstein in order to evaluate Plaintiff’s cervical spine and change post-surgery. The information provided will also prepare Defendant for any future medical claim that Plaintiff raises.

In opposition, Plaintiff argues the first examination was sufficient to inform Dr. Weinstein of Plaintiff’s condition. Additionally, Plaintiff argues that Defendant knew Plaintiff was planning to have surgery, and nevertheless, scheduled the first independent examination before surgery. However, Defendant contends this was necessary to compare Plaintiff’s condition before and after surgery.

While Plaintiff contends the examination is not justified to evaluate his future medical treatment, Plaintiff does not deny he is claiming future medical damages; instead, he asserts the surgery improved his pain but did not cure it. (Opp., 4.) Also, while Plaintiff asserts the second examination would cause unnecessary pain and harassment, Defendant asserts the examination would take approximately one hour and be limited to the cervical spine. Plaintiff does not specify any particular test that would cause pain. Therefore, the Court concludes there is good cause for the second examination since it is limited to one area of the body for a limited amount of time, and will reveal information on Plaintiff’s current and future condition.

CONCLUSION AND ORDER

Accordingly, Defendant’s motion for Leave of a Second Independent Medical Examination of Plaintiff is GRANTED. Plaintiff shall appear for the examination at an agreed upon date and time within 30 days.

Defendant shall provide notice of the Court’s order and file a proof of service of such.