Judge: Anne Hwang, Case: 21STCV08346, Date: 2023-09-13 Tentative Ruling

Case Number: 21STCV08346    Hearing Date: November 28, 2023    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 March 3, 2021, Plaintiff Aimee Shea Cole (Plaintiff) filed a complaint against Defendant Gilberto Villarreal Meraz (Defendant) and Does 1 to 50, for damages resulting from an alleged motor vehicle accident.

On August 24, 2023, Defendant filed a motion to compel Plaintiff to submit to an otolaryngology examination with Marc Cohen, M.D. Plaintiff opposes.

LEGAL STANDARD

Except for defense physical examinations in personal injury cases (in which one examination is permitted as a matter of course) and examinations arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (Code Civ. Proc. §2032.320(a).)   

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.   

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)   

DISCUSSION

Defendant argues good cause exists because “Defendant is entitled to inquire into the cognitive and sensory complaints plaintiff has alleged and the hearing issues plaintiff also alleges.” (Motion at p. 4.) The declaration of counsel asserts that “given the fact plaintiff continued to claim ongoing symptoms to various types of injuries including a traumatic brain injury and eyes and hearing issues, defendants need to have an expert … otolaryngologist Marc Cohen, M.D.” (Madigan Dec. ¶ 5.)

In opposition, Plaintiff argues that Defendant has not attached evidence of ongoing otolaryngology complaints to support the contention. (Opposition at p. 2.) Further, Plaintiff has not sought treatment for vision or hearing problems. (Id.)

Defendant replies that Plaintiff complains of a traumatic brain injury with neurocognitive defects and dizziness and that Plaintiff’s eyes were checked by an ophthalmologist.

The Court agrees that Defendant has not demonstrated that Plaintiff claims any ongoing vision or hearing issue sufficient to demonstrate good cause for an otolaryngologic examination. Plaintiff has already agreed to a neurological examination, which, based on the evidence presented by Defendant, is sufficient to address the claim of traumatic brain injury.

CONCLUSION AND ORDER

Therefore, the Court DENIES Defendant’s motion to compel Plaintiff’s otolaryngologic examination.

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