Judge: Anne Hwang, Case: 22STCV05699, Date: 2024-09-23 Tentative Ruling

Case Number: 22STCV05699    Hearing Date: September 23, 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 15, 2022, Plaintiff Kristy Castro (“Plaintiff”) filed a complaint against Defendant Arie Genchel (“Defendant”) for negligence regarding an alleged motor vehicle/ pedestrian collision.

            Defendant now moves to compel Plaintiff to submit to a neurological examination. No opposition has been filed.  

LEGAL STANDARD

“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 Vincent H. Brunello, counsel for Defendant, states the following: “The parties have met and conferred regarding the need to take a neurological examination. Unfortunately, Plaintiff will not submit to an exam with Dr. Nudleman despite her neurological complaints.” (Brunello Decl. ¶ 12.)

DISCUSSION

Defendant seeks to have Plaintiff examined by Dr. Kenneth L. Nudleman, a board-certified neurologist.

Here, Plaintiff has already submitted to two prior medical examinations with an orthopedic surgeon and an oral surgeon for injuries to her jaw. Plaintiff has claimed the following relevant injuries: loss of consciousness, headaches, nausea and vomiting, and cognitive issues with speech and memory. (Brunello Decl. ¶ 4, Exh. B, Castro Depo. 57:7-18, 61:2-64:25.)

The Court finds good cause for the neurological examination.

CONCLUSION AND ORDER

Accordingly, Defendant Arie Genchel’s Motion to Compel Attendance of a Neurological Examination is GRANTED. Plaintiff shall appear for a neurological examination, as set forth in the demand, by Dr. Nudleman within 30 days.   

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