Judge: Anne Hwang, Case: 21STCV26613, Date: 2023-09-14 Tentative Ruling

Case Number: 21STCV26613    Hearing Date: February 2, 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 July 20, 2021, Plaintiff Adrien Aaron Garcia (Plaintiff) filed a complaint against Defendants Juan Carlos Olvera, American Way Management, Inc., and Does 1 to 20 for negligence and negligent entrustment resulting from a motor vehicle accident.

            Defendants Juan Carlos Olvera and American Way Management, Inc. (Defendants) now move to compel Plaintiff’s appearance at a neurological examination and orthopedic examination. Defendants also seek monetary sanctions. Plaintiff opposes and Defendants reply.

LEGAL STANDARD

Physical Examination

“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).)¿¿The demand must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. (Code Civ. Proc. § 2032.220(c).) The demand must also be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time. (Code Civ. Proc. § 2032.220(d).) 

Code of Civil Procedure section 2032.250 provides that, when a plaintiff fails to respond to a demand, or refuses to submit to the physical examination, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. The motion must be accompanied by a meet and confer declaration. 

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2032.250 (b).) 

Neurological Examination

“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).) “If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:

(1) The court determines that there is good cause for the travel involved.

(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.” (Code Civ. Proc. § 2032.320(e).)

“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 Keith W. Moreton states that he spoke on the telephone with Plaintiff’s counsel regarding his objections to the examination demands. (Moreton Decl. ¶ 10, 13.) Therefore, it appears Defendants’ counsel made good faith attempts to resolve the issue.

DISCUSSION

Here, Plaintiff alleges the following injuries: left rib fracture, right pulmonary contusion, fracture of left forearm, contusion of left thigh, headaches, neck pain, lower back pain, mid back pain, right shoulder pain, dizziness, cognition and memory difficulties, changes in mood, fatigue and sleep-wake cycle changes. (Moreton Decl. ¶ 3, Exh. A.)

Defendant demanded a neurological examination with George Chow, M.D. in Tarzana, California and an orthopedic examination with Steven Nagelberg, M.D. in Downey, California. Plaintiff resides in Camp Pendleton. Plaintiff objected to the Dr. Chow examination in part, on the basis that it was over 75 miles from his residence. (Id., Exh. F.) Plaintiff did not object to the distance for the Dr. Nagelberg examination. According to Defendants’ use of Google Maps, Plaintiff’s distance to Dr. Chow is 107.5 miles. (Id., 17, Exh. I.) Plaintiff’s distance to Dr. Nagelberg is between 73.1 to 78.1 miles. (Id. ¶ 16, Exh. H.)

Defendant argues that good cause exists to grant leave for Dr. Chow’s examination because Dr. Chow is closer to the Courthouse and thus, will be available to testify at trial. If Defendants were to obtain an expert from San Diego, although closer to Plaintiff, they would incur more costs to pay for that expert’s travel for the trial. Defendants argue there is no substantial hardship for Plaintiff to travel to Tarzana for the examination.  

Plaintiff argues he agreed to the subject demands if the following deficiencies in the demand were cured. Regarding the mental examination, Plaintiff argues Defendants failed to list in the demand, the actual tests that will be performed. Here, the amended demand states that Dr. Chow may ask Plaintiff questions related to the nature and extent of his injuries, no more than is necessary for purposes of diagnosis and evaluation. The demand also states that Dr. Chow may use “accepted diagnostic instruments, tests, manipulations, and techniques in a neurological examination.” (Id., Exh. C.) When seeking leave to conduct a mental examination, the party seeking leave must state the time, place, manner, conditions, scope, and nature of the examination fully and in detail. This means listing each by name. (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 260.) In Carpenter, the court discussed the heightened risk of intrusion that a mental examination could pose. (Id. at 261 [“Requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant's need for a meaningful opportunity to test the plaintiff's claims of physical or mental injury.”].) Additionally, the specificity and clarity of the order aids the examiner in complying with the parameters imposed by the court. (Id.)  

 Here, the demand did not state the specific tests by name. Additionally, Defendants’ motion fails to state the time, place, manner, conditions, scope, and nature of the examination being sought. The motion only asks for Plaintiff to appear for an examination at the next available date and time.[1] Additionally, Defendant has failed to show how good cause exists for Plaintiff to travel over 75 miles for the examination with Dr. Chow, when it does not appear that Defendants made efforts to procure a closer expert. Therefore, the motion for leave to conduct a neurological examination of Plaintiff is denied.

As for the orthopedic examination, it does not appear that Plaintiff is contending that the distance is over 75 miles, although it is near the limit. As a result, the Court will apply sections 2032.220 and 2032.250. The amended demand with Dr. Nagelberg states the examination will consist of a physical examination, and that he may use “accepted diagnostic instruments, tests, manipulations, and techniques . . . but no procedure causing pain or undue discomfort.” (Moreton Decl, Exh. E.) Unlike the rule in Carpenter, which pertains to mental examinations and additional physical examinations, Plaintiff does not point to a rule requiring the tests to be specifically listed in an initial defense physical examination.[2] Therefore, because the demand indicates the examination is within 75 miles and will not contain a painful or intrusive test or procedure, the motion to compel Plaintiff’s physical examination is granted. However, since Defendants indicate in reply that they have procured a more specific list of the areas to be tested, Defendants should include that list in the amended demand.

The Court finds that the parties acted with substantial justification is making and opposing this motion and declines to award monetary sanctions to either party.

CONCLUSION AND ORDER

Accordingly, Defendants Juan Carlos Olvera and American Way Management, Inc.’s motion to compel Plaintiff’s neurological examination is DENIED.  

Defendants Juan Carlos Olvera and American Way Management, Inc.’s motion to compel Plaintiff’s physical examination is GRANTED. 

The Court orders Plaintiff Adrien Aaron Garcia to appear for examination with Dr. Steven Nagelberg within 20 days of notice of the Court’s orders, unless the parties stipulate otherwise.

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