Judge: Anne Hwang, Case: 23STCV09122, Date: 2024-10-31 Tentative Ruling

Case Number: 23STCV09122    Hearing Date: October 31, 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

             Defendant Kona Ito, LLC aka Kona Ice (“Defendant”) now moves for leave to conduct a second physical examination of Plaintiff Manuel Torres Gonzalez (“Plaintiff”) with James Chen, M.D., an orthopedic specialist, on November 27, 2024. Plaintiff opposes and Defendant replies.

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 Melvin F. Marcia, Defendant’s counsel, shows that he sent a meet and confer email to Plaintiff’s counsel on September 19, 2024 regarding the second examination. (Marcia ¶ 11.) Plaintiff responded that there was no good cause. (Id. ¶ 12.) Therefore, it appears Defendant made a good faith effort to meet and confer.

DISCUSSION

This case involves injuries from a motor vehicle accident. Plaintiff claims injuries to his knees, cervical spine, and shoulders. (Marcia Decl. ¶ 6, Exh. B.) Defendant also sets forth that Plaintiff sought treatment to his knee from Dr. Charles Gruver due to pain in his neck causing radiculopathy. (Id. ¶ 4.)

Plaintiff will be examined on November 6, 2024 by Luke Macyszyn, M.D., a spine neurosurgeon, who will examine Plaintiff’s cervical spine injury claims; this will be Plaintiff’s first physical examination. The second examination will be conducted by Dr. Chen and will be limited to Plaintiff’s shoulders and right knee injuries.

In opposition, Plaintiff concedes he received nerve blocks and cervical injections to his neck from Dr. Gruver. (Opp., 4.) However, he argues this procedure was not a surgery; therefore, the examination by a spine neurosurgeon is unnecessary. Instead, Plaintiff contends his injuries are all orthopedic in nature, and should be limited to one orthopedic examiner. Plaintiff also contends that Defendant has failed to set forth the specific names of all the tests that will be conducted at the second examination. Lastly, Plaintiff contends the examination violates his right of privacy.

Since Plaintiff is claiming injuries to different parts of the body, which Defendant has established here require different specialists, the Court finds there is good cause to grant leave to conduct the second examination. Second, since Plaintiff has claimed neck, shoulder, and knee injuries, he has waived his privacy to these limited areas by filing this lawsuit. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 858-859.)¿

Defendant has set forth the time, place, manner, conditions, scope, and nature of the examination. Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, relied on by Plaintiff, relates to a mental examination.

As a result, the motion for leave is granted.

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion for Leave of Court to Conduct Two Physical Examinations is GRANTED.

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