Judge: Anne Hwang, Case: 21STCV26653, Date: 2024-05-09 Tentative Ruling

Case Number: 21STCV26653    Hearing Date: May 9, 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 Judith Reyes (“Plaintiff”) filed a complaint against Defendants Homecare Medical Products, Inc., Comfortcare Pharmacy, The Burton Steiger Trust, Burton Steiger, individually and as trustee of The Burton Steiger Trust, Adrianne Steiger, and Does 1 to 50 for negligence and premises liability. Plaintiff alleges she was injured after a door malfunctioned and struck her, causing injuries.

            Defendants Homecare Medical Products, Inc., Burton Steiger, individually and as trustee of The Burton Steiger Trust, and Adrianne Steiger, individually and as trustee of The First Amended and Restated Adrienne Steiger trust d/t/d 5/21/12 (“Defendants”) now move to conduct a second physical examination of Plaintiff. Plaintiff opposes and Defendants reply.

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 Evan Berman states that Defendants’ counsel attempted to stipulate with Plaintiff’s counsel regarding the subject examination. Plaintiff’s counsel declined to stipulate. (Berman Decl. ¶ 8.) Therefore, it appears Defendants’ counsel made a good faith attempt to resolve the issue.

DISCUSSION

            Defendants seek to compel a second physical examination of Plaintiff on May 15, 2024 at 1:00 p.m. by Thomas Grogan, M.D., a board-certified orthopedic surgeon. Defendants contend that Plaintiff’s first examination was with a neurosurgeon in January 2024 due to back pain and a spinal cord stimulator. However, Plaintiff also claims to have fallen on her shoulder and received shoulder surgery in June 2023. (Berman Decl. ¶ 5.) She also claims injuries to her back, leg, arm, and head. (Berman Decl. ¶ 3, Exh. A.) Since the neurosurgeon could not opine on the other injuries, Defendants argue there is good cause to compel a second physical examination by an orthopedic surgeon.

In opposition, Plaintiff appears to argue that Defendants should have selected an examiner who could examine both her spinal and physical injuries. Plaintiff also argues Defendants have not established good cause and that this examination is meant to harass Plaintiff. However, according to the notice provided by Plaintiff, the January 2024 examination consisted of a neuropsychological exam. (See Fradkin Decl. ¶ 3, Exh. B.) Plaintiff also does not dispute the injury to her shoulder. Therefore, Plaintiff fails to show that the instant examination is duplicative or harassing, since it appears to examine a different portion of Plaintiff’s body.

Defendants have provided the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of the person who will perform the examination. (See Berman Decl. ¶ 9.) Therefore, the Court finds good cause for Plaintiff to attend a second physical examination.

CONCLUSION AND ORDER

Accordingly, Defendants’ motion to Compel the Independent Medical Examination of Plaintiff is GRANTED.  

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