Judge: Audra Mori, Case: 19STCV23130, Date: 2023-03-07 Tentative Ruling

Case Number: 19STCV23130    Hearing Date: March 7, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Erika Solorzano (“Solorzano”) and Nancy Hernandez (“Hernandez”) filed this action against Defendant Ruzanna Demirtchyan (“Defendant”) for damages arising from a motor vehicle accident. 

At this time, Defendant moves for an order compelling Hernandez to submit to a neurological examination with George Chow, M.D. (“Dr. Chow”).  The motion is unopposed. 

Defendant provides that on May 31, 2022, Hernandez appeared for an orthopedic exam with Richard Rosenberg, M.D. (“Dr. Rosenberg”).  Defendant contends that the exam with Dr. Rosenberg was adequate to address Hernandez’s complaints of neck and back pain, but Dr. Rosenberg does not have the expertise to comment on the causation and prognosis of Hernandez’s neurological complaints.  Defendant, thus, seeks to compel Hernandez to appear for a second physical exam to be conducted by Dr. Chow to assess Hernandez’s neurological complaints. 

2. Motion to Compel Second Physical Examination of Plaintiff

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).) 

The examination will be limited to whatever condition is “in controversy” in the action.  (CCP §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.)  Discovery responses can also frame the issues regarding the injuries and damages alleged.  Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) 

The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action.  The moving party must also establish good cause for the examination(s) sought.  (CCP § 2032.320(a).

Here, Defendant asserts that as a result of the accident, Hernandez is making several neurological complaints, including that she suffers from headaches and difficulty sleeping.  Defendant provides that Hernandez has stated she has been diagnosed with a concussion and headaches by her healthcare provider.  Further, Defendant avers that Hernandez’s neurological symptoms require a separate specialty examination with Dr. Chow, to assess issues not covered in the orthopedic exam with Dr. Rosenberg.  Hernandez does not oppose the motion.  Hernandez does not dispute complaining of headaches or other neurological issues as a result of the accident.  The exam to be done by Dr. Chow is therefore directly relevant to Hernandez’s claims.    Defendant establishes good cause for a second exam.

Defendant’s motion to compel a second physical exam of Hernandez with Dr. Chow is granted. 

Hernandez is ordered to appear for the additional exam with a neurologist, at 18370 Burbank Blvd., Ste. 107, Tarzana, CA 91356.  The scope and manner of examination shall be as set forth in Defendant’s notice previously served on Hernandez.  (Mot. Exh. M.)  Counsel must meet and confer to determine the date and time for the examination; if Hernandez does not meaningfully participate in the meet and confer process, Defendant may unilaterally set the date and time for the examination with at least ten days’ notice to Hernandez (extended per Code if by other than personal service). 

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 7^th day of March 2023