Judge: Anne Hwang, Case: 22STCV21243, Date: 2024-05-22 Tentative Ruling

Case Number: 22STCV21243    Hearing Date: May 22, 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 June 29, 2022, Plaintiff Guzyaliya Mannanova (“Plaintiff”) filed a complaint against Defendants Trader Joe’s Company Inc., dba Trader Joe’s, and Trader Joe’s East Inc., dba Trader Joe’s, alleging a cause of action for negligence, arising out of a slip and fall on fruit at a Trader Joe’s location. 

             Defendant Trader Joe’s Company (“Defendant”) now moves to compel the second physical examination of Plaintiff. Defendant also separately moves to continue trial. Plaintiff opposes and Defendant replies to each motion.

            The motion to continue trial was originally scheduled on May 8, 2024. However, upon reviewing the motion, the Court determined it was not ripe since the basis for continuing relied on the motion to compel the second physical examination. (Min. Order, 5/8/24.) As a result, the Court continued the motion to continue to May 22, 2024 so that the motion to compel could be heard first.

            Further supplemental briefing was permitted to be filed at least five court days from the hearing.  

BACKGROUND

            The complaint was filed on June 29, 2022. Trial was originally set for December 27, 2023. (Notice of Case Assignment, 6/29/22.)

            Defendant’s answer was filed on August 15, 2022.

            On August 10, 2023, the Court granted in part Defendant’s motion to continue trial to April 3, 2024. Expert-related deadlines were continued with the new trial date. The minute order was silent as to the fact discovery cut-off. (Min. Order, 8/10/23.)

            On December 6, 2023, pursuant to stipulation, the Court continued trial to June 5, 2024. The discovery and motion cut-off dates were not based on the new trial date.

            Based on the information above, the fact-discovery cutoff attached to the December 27, 2023 trial date, and the expert discovery cut-off attached to the April 3, 2024 trial date. Therefore, all discovery is currently closed.

LEGAL STANDARD

Motion to Compel Second 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).)¿¿¿ 

“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 Kristin Mathis states that she advised Plaintiff’s counsel that Defendant was entitled to a second physical examination of Plaintiff. (Mathis Decl. ¶ 12.) Plaintiff did not agree to the second examination, thereby, necessitating this motion. Therefore, even though it does not appear Defendant made a robust effort to meet and confer, it appears a good faith attempt was made to resolve the issue.

DISCUSSION

            Defendant seeks to compel the second physical examination of Plaintiff with Dr. David C. Hay, M.D., a hand/wrist specialist on May 30, 2024, at his medical office. Defendant argues that Plaintiff’s new medical records reveal she will need left wrist and hand surgery. The first physical examination was conducted on October 11, 2023 by Dr. Ronald S. Kvitne, an orthopedic doctor, and was limited to her spinal, shoulder, and hip injuries.

However, the discovery motion cut-off in this case is closed. Any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30^th day, and to have motions concerning discovery heard before the 15^th day, before the date initially set for the trial of the action. (Code Civ. Proc.§ 2024.020 (a).) Additionally, any party shall be entitled as a matter of right to complete discovery proceedings pertaining to expert witnesses on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action. (Code Civ. Proc. § 2024.030.)¿A trial court abuses its discretion in hearing a discovery motion past the deadlines in Code of Civil Procedure section 2024.020 when it does not require the party to file a motion for leave to reopen discovery under section 2024.050. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568, 1588.)¿¿

As noted above, the fact discovery cut-off attached to the December 27, 2023 trial date and the expert discovery cut-off attached to the April 3, 2024 trial date. Since this motion is being heard on May 22, 2024, it is untimely. No motion to reopen discovery has been granted. The motion to compel the second examination does not cite section 2024.050, or separately move to reopen discovery in order to hear the instant motion and provide for the second examination.

Additionally, the motion to continue trial also does not move to reopen discovery under section 2024.050. Therefore, both motions are denied.

The Court notes that Defendant has filed a motion to reopen discovery that is set to be heard on June 4, 2024, the day before the trial. On May 15, 2024, the Court denied Defendant’s ex parte application to shorten time/specially set the motion to reopen discovery.

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Compel Second Physical Examination of Plaintiff is DENIED.

Defendant’s Motion to Continue Trial Date, Final Status Conference and Expert Discovery Cut-off Dates is DENIED.

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