Judge: Anne Hwang, Case: 23STCV02627, Date: 2024-07-09 Tentative Ruling

Case Number: 23STCV02627    Hearing Date: July 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

MOTION

            On February 7, 2023, Plaintiff Alma Nieva-Perez (“Plaintiff”) filed this action after allegedly falling off an external staircase.   

             Defendants Ehud Levy, 1621 Westerly Terrace, LLC, and Alexander Henry Levin (“Defendants”) now move for leave to take a physical examination of Plaintiff with Alfredo A. Sadun, M.D., Ph.D, a specialist in neuro-ophthalmology. Plaintiff opposes and Defendants repy.

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 Christopher Babadjanian, Defendants’ counsel, states the following: “On March 1, 2024, I caused to be sent to plaintiff’s counsel a meet and confer correspondence requesting their consent to an ophthalmology examination of plaintiff with Dr. Sadun. On March 6, 2024, I followed-up that correspondence by sending an email, again requesting plaintiff consent to the examination to avoid motion practice. I did not receive any response to the above correspondence.” (Babadjanian Decl. ¶ 9–11.)

DISCUSSION

Plaintiff claims visual impairment problems, including blurry vision and light sensitivity, that are ongoing. (Babadjanian Decl. ¶ 6, Exh. B, FROG #6.2.) In May 2024, Plaintiff attended a defense physical examination with Dr. Millstein, an orthopedist. However, Defendants contend that Dr. Millstein is not an ophthalmologist and therefore was unable to examine issues related to Plaintiff’s vision. As a result, they seek Dr. Sadun, a board-certified ophthalmologist, to perform a neuro-ophthalmology examination.

In opposition, Plaintiff argues that besides orthopedic injuries, she is alleging a traumatic brain injury. She asserts the vision issues stem from the brain trauma, and not from an ocular injury. As a result, Plaintiff asserts that while a neurological exam is justified, an ophthalmology examination is not.[1] However, Plaintiff does not dispute the vision issues or contends the examination will be painful or intrusive.

In reply, Defendants argue that they have a right to investigate the causes of Plaintiff’s injuries and not rely on Plaintiff’s assertion on what caused the vision issues.

Defendants’ motion also sets forth the time, place, manner, conditions, scope, and nature of the examination, setting the examination for July 26, 2024 at 10:00 a.m., at 800 S. Fairmount Ave., Suite 215, Pasadena, CA 91105.

            Therefore, based on the information provided, the Court finds good cause to allow leave for a neuro-ophthalmology examination.

CONCLUSION AND ORDER

Accordingly, Defendants’ Motion for leave to conduct a neuro-ophthalmology examination of Plaintiff is GRANTED.

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