Judge: Cherol J. Nellon, Case: 19STCV44498, Date: 2023-04-14 Tentative Ruling

Case Number: 19STCV44498    Hearing Date: April 14, 2023    Dept: 28

Defendants Aron Joel Hernandez and City of Los Angeles’s Motion to Compel Plaintiff Jess Dunlap’s Independent Medical Exam

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On December 10, 2019, Plaintiff Jess Dunlap (“Plaintiff”) filed this action against Defendants Aron Joel Hernandez (“Hernandez”) and City of Los Angeles (“City”) for motor vehicle negligence.

On February 28, 2020, Defendants filed an answer.

On March 20, 2023, Defendants filed a Motion to Compel Plaintiff’s IME to be heard on April 14, 2023. On March 30, 2023, Plaintiff filed an opposition. On April 6, 2023, Defendants filed a reply.

Trial is currently scheduled for May 2, 2023.

PARTY’S REQUESTS

Defendants request the Court order Plaintiff to attend an IME with neurologist Arthur P. Kowell, MD, PhD on April 26, 2023, at 1:00 p.m. at 16311 Ventura Blvd., Ste 680, Encino, CA 91436.

Plaintiff requests the motion be denied or, in the alternative, limit the examination and “provide protection to Plaintiff to obtain all the relevant information related to the examination as the code requires.”

LEGAL STANDARD

A defendant may demand one physical examination of the plaintiff in applicable personal injury cases, so long as the examination is not painful, protracted or intrusive, and within 75 miles of the examinee’s place of residence. Code of Civil Procedure § 2032.220. Within 20 days of being served with the demand, the plaintiff served will respond either with intent to comply or refuse, and if the latter, provide reasons for the refusal. CCP § 2032.230.

Code of Civil Procedure §2032.310 (a) requires a party to obtain leave of court if it wishes to obtain discovery by an additional physical exam or any mental exam. Subdivision (b) provides that a motion 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.” Such a motion may only be granted on good cause shown. (CCP §2032.320(a).)

California Code of Civil Procedure § 2023.030(a) provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” According to CCP §2023.010(d), misuse of the discovery process includes “failing to respond or to submit to an authorized method of discovery.”

DISCUSSION

Plaintiff alleges that, as a result of the subject incident, he has suffered from orthopedic and neurological injuries, including headaches, disrupted vision, neck pain, shoulder pain, back pain, numbness and tingling in hands, difficulty urinating, stress, suicidal thoughts and difficult sleeping. Plaintiff treated with both orthopedic surgeons and neurologists following the incident. Plaintiff has put potential injuries and symptoms at issue that a neurologist could evaluate, meaning there is good cause for such an IME.

Plaintiff’s arguments regarding both timing and the lack of expert support are both irrelevant to determination of good cause. The discovery period is still ongoing, and an expert opinion is not required for this motion.

However, Defendants’ motion currently does not provide adequate information as to the conditions, scope, and nature of the examination. Defendants merely state that the exam shall include “whatever history and tests are necessary...” Defendants later provide a list of potential examinations, ending the list with “other essential tests and evaluations.” This does not meet the standard required under CCP § 2032.310(b). Defendants must list all potential tests that may be conducted. The Court continues the motion and orders Defendants to submit an additional document with a code-compliant document that provides proper information on the tests to be conducted.

CONCLUSION

Defendants Aron Joel Hernandez and City of Los Angeles’s Motion to Compel Plaintiff Jess Dunlap’s Independent Medical Exam is CONTINUED to May 9, 2023, at 1:30 p.m. in Department 28 of the Spring Street Courthouse.

Defendants are ordered to file supplemental papers by April 28, 2023.

Plaintiff may submit a supplemental opposition to the new papers, to be filed by May 3, 2023.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.