Judge: Anne Hwang, Case: 22STCV36919, Date: 2024-10-25 Tentative Ruling

Case Number: 22STCV36919    Hearing Date: October 25, 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 (which is highly encouraged).  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

Plaintiff Yoon Kyung Rhee (“Plaintiff” or “Rhee”) filed a complaint against Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant” or “LACMTA”) based on injuries Plaintiff alleges she sustained while a passenger on a bus owned and operated by Defendant LACMTA. Defendant now moves to compel Plaintiff to submit to a neurological examination by neurologist, Michael Gold, M.D., on October 30, 2024. Alternatively, Defendant LACMTA asks that the Court continue the trial date and have discovery run from the new trial date, to make the October 30, 2024, examination date outside of the discovery cut off period. Plaintiff filed a belated opposition.[1]

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.) 

Under Code of Civil Procedure section 2032.320, “[a]n order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”  (Code Civ. Proc., § 2032.320, subd. (d).)  Further, a trial court order must “describe in detail who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. The way to describe these ‘diagnostic tests and procedures’—fully and in detail—is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)

ANALYSIS

Here, Plaintiff contends she suffered and is continuing to suffer from the following injuries as a result of the incident: headaches, dizziness, post-concussive syndrome, elevated blood pressure, concussion, migraine, scattered ventricular T2 hyperintensities, memory problems, and short-term memory loss. (Mot., Pederson Decl., ¶ 2, Ex. 1—Response to 6.3.) Furthermore, Plaintiff Rhee stated in her responses to discovery that she sought treatment with medical providers at Cedars Sinai, including neurologist, Jonathan Eskenazi. (Id., ¶ 3, Ex. 1.) Accordingly, on February 13, 2024, Defendant noticed Plaintiff’s defense examination with neurologist, Michael Gold, M.D. (“Dr. Gold”) for April 2, 2024. (Id., ¶ 5, Ex. 2.) On March 1, 2024, Plaintiff served an objection to the neurological exam. (Id., ¶ 6, Ex. 3.) Thereafter, Defense attorney, Sivi G. Pederson, engaged in meet and confer efforts with Plaintiff’s counsel regarding Plaintiff’s failure to appear for her deposition, as well as her objection to the defense’s neurological examination. (Id., ¶ 9.) Plaintiff’s counsel then informed Defense counsel that Plaintiff could not appear for her deposition or any medical examination because she had no teeth and it would be months for her dental treatment. (Id.) Defense counsel then requested documentation or “proof” of Plaintiff’s dental treatment. (Id.) Thus, on March 20, 2024, Plaintiff’s counsel sent Defense counsel a letter from Plaintiff’s dentist confirming her need for dental treatment. (Id., ¶ 10, Ex. 4.)

On July 30, 2024, Defendant once again noticed Plaintiff’s defense examination with Defense’s neurologist, Dr. Gold for April 2, 2024. (Id., ¶ 11, Ex. 5.) On August 12, 2024, Plaintiff appeared for her deposition and testified that she saw a neurosurgeon and neurologist for bad headaches. (Id., ¶ 12, Ex. 6.)

On August 16, 2924, Plaintiff again served an objection to her neurological examination. (Id., ¶ 13, Ex. 7.) On September 27, 2024, Defense counsel sent a meet and confer letter to Plaintiff’s counsel regarding Plaintiff’s objection to appear for a neurological examination, requesting a response by September 30, 2024, otherwise Defendant would be moving to compel said examination. (Id., ¶ 15, Ex.  9.) Defendant contends that Plaintiff’s counsel never responded to Defense counsel’s September 30, 2024, meet and confer letter and still has yet to respond to date. (Id., ¶ 16; Mot., pg. 3.)

Defendant then subsequently contacted Dr. Gold’s office for a new examination date but the next first available date was October 30, 2024, which Defendant reserved. (Pederson Decl., ¶ 17.) Thus, on September 30, 2024, Defendant noticed Plaintiff’s defense examination with neurologist, Dr. Gold. (Id., ¶ 18, Ex. 10.)

Defendant concludes that Plaintiff has twice objected to attending a defense medical examination with Defendant’s neurologist despite appearing for a noticed defense physical examination with Defendant’s orthopedic (after initially objecting on the same grounds as is being maintained to the neurological examination.) (Mot., pg. 2.) Thus, Defendant argues that Defendant would be at a serious disadvantage and severely prejudiced if Plaintiff is allowed to have a doctor(s) testify as to Plaintiff’s neurological injuries while Defendant is not permitted to have Plaintiff undergo an independent neurological examination to determine the validity and extent of Plaintiff’s neurological issues prior to trial. (Id.) Moreover, Defendant would not be able to have an expert present his own findings at trial and properly defend itself against Plaintiff’s allegations. (Id., pgs. 2-3.) Defendant argues Plaintiff has placed her mental condition in controversy in this action by claiming neurological issues as a result of the alleged incident. (Id., pg. 2.) Specifically, Plaintiff has claimed that she fell and hit her head during the incident and lost consciousness which has resulted in the headaches, dizziness, and loss of memory. (Id.)

In sum, Defendant is requesting the Court order Plaintiff to undergo the noticed mental neurological examination (noticed on September 30, 2024) with Dr. Gold on October 30, 2024, so that Defendant may defend itself against Plaintiff’s claims. (Mot., pg. 3.) In the alternative, Defendant requests the Court continue out the trial date for 15-30 days and have the discovery cutoff date run from the new trial date to allow for the neurological examination to occur before the discovery cutoff date. (Mot., pg. 3.)

            First, the Court finds Plaintiff’s assertions of headaches, dizziness, post-concussive syndrome, elevated blood pressure, concussion, migraine, scattered ventricular T2 hyperintensities, memory problems, and short-term memory loss, place her mental condition at issue such that good cause exists for Defendant’s requested neurological examination of Plaintiff.

Next, the Court notes that it has now granted the parties’ stipulation to continue, which also continues all discovery and motion deadlines.

Finally, although Plaintiff argues that notice of this motion was insufficient, Defendant demonstrates that the motion was personally served and therefore timely.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant’s motion to compel Plaintiff to submit to the neurological examination by Doctor Gold on October 30, 2024.     

Defendant shall provide notice of this ruling and file a proof of service of such.