Judge: Anne Hwang, Case: 22STCV15011, Date: 2024-06-03 Tentative Ruling

Case Number: 22STCV15011    Hearing Date: June 3, 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

MOTION

            On May 5, 2022, Plaintiff Camille Denise Michael (“Plaintiff”) filed a complaint against Defendant Target Corporation (“Defendant”) based on an alleged slip and fall at a Target store.  

             Defendant now moves to compel an additional medical examination of Plaintiff with Dr. Kenneth Jung, M.D. Plaintiff opposes and Defendant replies.

BACKGROUND

            On April 5, 2024, the Court granted in part Defendant’s ex parte application to continue trial in order to have this motion heard. Trial and all discovery and pre-trial motion cut off dates were continued to July 30, 2024. (Min. Order, 4/5/24.)

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 R. Derek Classen states the following: “On February 2, 2024, Plaintiff’s counsel Jonathan Meislin and I met and conferred regarding Defendant's request for a second IME. Plaintiffs continued rhetoric is that Defendant is only entitled to one IME unless it obtains permission from the Court, and that Dr. Rose's examination of her upper extremities should be sufficient since Plaintiffs "primary injuries" involve her upper extremities.” (Classen Decl. ¶ 3.) Therefore, the meet and confer requirement is met.

DISCUSSION

Plaintiff claims injuries to her wrists, feet, and ankles. (Classen Decl. ¶ 2.) On March 6, 2024, Plaintiff attended an examination with Dr. Nicholas Rose which concentrated on her wrists. Defendant seeks a second examination with Kenneth Jung, M.D., an orthopedic surgeon who specializes in the foot and ankle, to focus on Plaintiff’s ankle injuries.

In opposition, Plaintiff argues this examination is unnecessary and harassing. Plaintiff also argues Defendant was dilatory in bringing this motion, the motion is procedurally defective because it lacks a separate statement, and the original notice of examination failed to specify the scope of the examination. Plaintiff contends there is no good cause to allow examination of her ankles since that information originates from a mediation and thus, is confidential.

In reply, Defendant points to Plaintiff’s discovery responses where she claims injuries to her ankles. (Classen Decl., Exh. F, SROG # 24.) Defendant also argues it was not dilatory since it brought this motion shortly after learning that Plaintiff was contemplating surgeries for her ankles. (Reply, 3.)

            Based on the information provided, the Court finds good cause to allow leave for a second physical examination limited to Plaintiff’s ankles.

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Compel an Independent Medical Examination of Plaintiff is GRANTED. Plaintiff shall appear for an examination limited to Plaintiff’s ankles at a mutually convenient date and time within 20 days.

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