Judge: Donald F. Gaffney, Case: Lepou v. Verduzco, Date: 2022-08-31 Tentative Ruling

TENTATIVE RULING: 

Motion to Compel Independent Medical Examination

Defendant Vasoking de Mexico (Doe 1) moves to compel the independent medical examination of Plaintiff Victoria Lynn Lepou. For the following reasons, the motion is GRANTED.

On 08/03/2022, this court continued the motion for Defendant to comply with Section 2031.310(b). Section 2031.310(b) provides that a motion for examination must 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(s) who will perform the examination. (Code Civ. Proc., § 2032.310(b).) Defendant filed an amended notice of motion complying with the statute.

Code of Civil Procedure Section 2032.220(a) provides that any defendant may demand one physical examination of the plaintiff seeking damages for personal injuries. A party desiring to obtain discovery by a second physical examination or mental examination must obtain leave of court. (Code Civ. Proc., § 2032.310(a).) The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2032.310(b).)

Here, Defendant requests a second examination and submitted a meet and confer declaration pursuant to Section 2023.310.

The court shall grant the motion under section 2032.310 compelling a second physical examination only for good cause shown. (Code Civ. Proc., § 2032.320(b).) “[A] showing of ‘good cause’ as requiring 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. Super. Ct. (1987) 43 Cal.3d 833, 840 [based on prior statute Code Civ. Proc., § 2036; footnote omitted].) “The authoritative discovery commentators agree that multiple defense examinations are permitted on the necessary showing of good cause.” (Shapira v. Super. Ct. (1990) 224 Cal.App.3d 1249, 1255.) Where 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 plaintiff.  (Id. at p. 1255 [second mental examination may be ordered].)

Here, Moving Defendant shows good cause for the ophthalmologic examination. Plaintiff has placed her vision at issue and was evaluated and/or treated for vision issues. (Kamil Decl., Ex. B at 10:18-23, Exs. C-D.) Plaintiff’s responses to Form Interrogatories attribute dizziness, loss of balance, blurred vision, and double vision to the incident. (Kamil Decl., ¶ 5, Ex. B at 10:18-25.) In addition, Plaintiff was assessed by an optometrist. (Kamil Decl., Ex. D.)

In addition, Plaintiff fails to support with competent evidence her contention that dilated fundoscopy would be intrusive. Plaintiff only quotes an unidentified source to support her contention. Furthermore, Plaintiff fails to show the distance to the examination is prohibitive. While travel to Beverly Hills from Orange County is inconvenient, it is not prohibitively so.

The court did not consider the supplemental declaration of Attorney Ramin Soofer, filed in response to the amended notice. New evidence is not permitted at this stage in the briefing, as the opposing party does not have an opportunity to respond. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.)

Plaintiff is ordered to pay sanctions in the amount of $1,400.00 to Bonetati & Soble, Inc., within 30 days of the service of the notice of ruling.

Plaintiff Victoria Lynn Lepou shall submit to an examination on September 26, 2022, at 10:30 a.m. at the office of Alan L. Shabo, M.D., 9100 Wilshire Boulevard, Suite 265E, Beverly Hills, California. The examination shall be limited in scope to that identified in Defendant’s initial notice of independent medical examination. (Kamil Decl., Ex. F.)

Moving Defendant to give notice.