Judge: Cynthia A Freeland, Case: 37-2022-00029515-CU-PO-NC, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 31, 2023

09/01/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00029515-CU-PO-NC WOJAK VS. DOE 1 CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 08/04/2023

Defendant Michele Mahoney ('Defendant')'s motion to compel Plaintiff Dean Wojak ('Plaintiff') to submit to a physical examination is denied.

Plaintiff's objection to Mr. Gravdal's declaration is sustained to the extent Mr. Gravdal offers his opinion that good cause exists for the court to order an additional medical examination of Plaintiff's pelvis.

Plaintiff's objection to Dr. Kasra Maasumi's medical report attached as Exhibit A to Mr. Gravdal's Declaration is overruled. Plaintiff is correct that '[t]he general rule of motion practice . . . is that new evidence is not permitted with reply papers.' Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537.

'However, a recognized exception is for points 'strictly responsive' to arguments made for the first time in the opposition.' Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal. App. 5th 733, 774. In this case, Defendant has offered Dr. Maasumi's medical report in response to Plaintiff's argument in his opposition that his pelvic fracture caused his foot drop. Dr. Maasumi has opined as to the relationship between Plaintiff's foot drop and lower back injury(s), but not as to Plaintiff's pelvis.

Finally, Plaintiff's objection to Defendant's citation to Malloian v. Man, 2023 Cal. Super. LEXIS 29716, which Defendant acknowledges is a valid objection, is sustained. See Cal. R. Ct. 8.1115(a) ('[A]n opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.').

Initially, the court notes that the motion is procedurally deficient because it is not accompanied by a separate statement. See Cal. R. Ct. 3.1345(a)(6) ('[A]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motion that require a separate statement including a motion: . . . For medical examination over objection[.]').

The foregoing constitutes grounds to deny the motion. However, even if the court were to overlook the motion's procedural deficiency, the court would still deny the motion on the merits for the following reasons.

California Code of Civil Procedure ('CCP') §§ 2032.010 et seq. govern civil discovery by physical and mental examination. CCP § 2032.020(a) provides that '[a]ny party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.' Cal. Code Civ. P. § 2032.020(a). As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with CCP §§ 2031.010 et seq., if the plaintiff has placed his or her physical or mental condition in controversy. See Cal. Code Civ. P. § 2032.020(a); Vinson v. Sup. Ct. (1987) 43 Cal. Calendar No.: Event ID:  TENTATIVE RULINGS

3000899 CASE NUMBER: CASE TITLE:  WOJAK VS. DOE 1  37-2022-00029515-CU-PO-NC 3d 833, 839. In a personal injury action, the defendant generally may demand one physical examination of the plaintiff provided that: (1) the examination does not include painful, protracted, or intrusive diagnostic tests or procedures; and (2) the examination takes place within 75 miles of the plaintiff's residence. See Cal. Code Civ. P. § 2032.220(a). However, the defendant may seek leave of court to conduct additional physical examinations upon a showing of good cause. See Shapira v. Super. Ct.

(1990) 224 Cal. App. 3d 1249, 1254-1255; Cal. Code Civ. P. §§ 2032.310(a), 2032.320(a). 'Good cause' 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, 43 Cal. 3d at 840.

The court finds that Defendant has not demonstrated the requisite good cause for an order compelling Plaintiff to submit to a physical examination by Dr. Mark Schultzel. Initially, and notably, Defendant provides no discussion regarding why the same information cannot be obtained through less intrusive means. See, e.g., Allen v. Sup. Ct. (1984) 151 Cal. App. 3d 447, 449; Britt v. Sup. Ct. (1978) 20 Cal. 3d 844, 856. Moreover, the evidence shows that on August 3, 2023, Plaintiff submitted to a physical examination by Dr. Maasumi, who is board certified in pain medicine and neurology. See Plaintiff's Notice of Lodgment, Ex. 1; Gravdal Decl., Ex. A. The court must respectfully agree with Plaintiff that Defendant was on notice of Plaintiff's claimed injuries in this action before noticing the physical examination by Dr. Maasumi. The Notice of Independent Medical Examination indicates that Dr.

Maasumi was to conduct a complete physical examination of Plaintiff including: (1) a history of the accident as it pertains to Plaintiff's injuries; (2) a prior or subsequent history as it pertains to complaints or injuries that involve the same body parts claimed to have been injured in the subject accident; (3) a history of any consultation or examination or treatment from any health care provider for any injury attributable to the subject accident; and (4) information from Plaintiff as to any present complaints attributable to the incident, involving a description of each complaint, if any. Of significance, the scope of the proposed examination by Dr. Schultzel is the same as that conducted by Dr. Maasumi. A second physical examination would, in the court's estimation, constitute a proverbial 'second bite at the apple.' In addition, Defendant fails to articulate what a second physical examination would accomplish other than confirmation that Plaintiff suffered a fractured pelvis. Defendant will have an opportunity cross-examine Dr. Mundis and Plaintiff's expert as to the neurological issues at issue in this case, and Defendant's orthopedic expert is not prevented from reviewing all pertinent medical records and information elicited during discovery.

In light of the foregoing, the court denies Defendant's motion to compel Plaintiff to submit to a physical examination.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 1, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 1, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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