Judge: Frank M. Tavelman, Case: 23BBCV00739, Date: 2024-08-30 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify "all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue."  The tentative ruling will become the ruling of the court if no argument is requested.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

Case Number: 23BBCV00739    Hearing Date: August 30, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Petros Vardapetyan (Plaintiff) brings this action against Vardui Yepremyan and Levon Vardapetyan, individually and as co-trustees of the Vardapetyan Trust (Defendants). Plaintiff alleges that he was injured when he tripped on the steps in Defendants’ backyard. Plaintiff alleges the steps were constructed defectively. Plaintiff states two causes of action for (1) General Negligence and (2) Premises Liability.

Defendants now move to compel Plaintiff’s participation in an independent medical exam (IME). While Plaintiff has already undergone one IME, Defendants claim another is necessary because the first doctor did not examine Plaintiff’s neck. Defendants state that the first doctor was only qualified to examine Plaintiff’s foot injuries and a second exam must be conducted by an orthopedic spinal surgeon. Plaintiff opposes the motion, arguing that the first doctor was well capable of examining Plaintiff’s neck for related injuries.

ANALYSIS: 

I.                    LEGAL STANDARD 

Where any party seeks to obtain discovery by a physical examination other than that described in C.C.P. § 2032.220, or by a mental examination, the party shall obtain leave of the court. (C.C.P. § 2032.310(a).) A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination and shall be accompanied by a meet and confer declaration. (C.C.P. § 2032.310(b).)

The Court shall grant the motion only for good cause shown. (C.C.P. § 2032.320(a).) To show good cause, the moving party must provide specific facts justifying discovery and show that the inquiry is relevant to the subject matter of the case or is reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  The good-cause requirement serves as a barrier to excessive and unwarranted intrusions. (Id.)

II.                 MERITS

Separate Statement

As a preliminary matter, the Court notes that Defendants have provided no separate statement in conjunction with their initial filing. A motion for medical examination over objection must be accompanied by a separate statement. (C.R.C. Rule 3.1345(a)(6).) Defendants have since filed a Separate Statement alongside their reply.

Defendants argue that no Separate Statement was required in their filing because C.R.C. Rule 3.1345 only requires one when there has been “written objection”. Here, Plaintiff clearly objected in written form on several occasions. Plaintiff’s counsel informed that they were objecting to the second IME in a June 17, 2024 email. (See Exh. D, p. 41 [“Unfortunately, we will be objecting to a second physical IME for Plaintiff Petros Vardapetyan]. Plaintiff’s counsel confirmed this position in June 18, 2024. (See Exh. D, p. 45 [“At this time our position stands, please do what you must.”].) Although the term “objection” takes many forms in legal parlance, C.R.C. Rule 3.1345 only requires that the party to be compelled object in writing. The Court is unaware of any authority dismissing why an email explicitly saying Plaintiff objects to the examination would not qualify as a written objection.

Nonetheless, the Court finds the failure to initially include a separate statement is not grounds for denial of the motion and would have simply continued the matter delaying a hearing on the merits. As such, the Court will consider the merits of the motion.

Merits

Plaintiff’s sole argument in opposition is that Defendants have not demonstrated good cause to compel a second IME. The Court finds this argument unpersuasive.

There is no limit on the number of physical examinations, provided that a showing of good cause is made justifying more than examination. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) Shapira concerned an order to compel a second medical examination of a plaintiff who claimed both physical and mental injuries. (Id.) The Shapira court noted that "multiple examinations should not be ordered routinely; the good cause requirement will check the potential harassment of plaintiffs by repetitive examinations," and "multiple examinations by medical specialists in different fields" may be necessary based upon a plaintiff's claimed injuries. (Id.)

The good cause requirement is intended to check for potential harassment of plaintiffs by repetitive examinations. (Id.; See also Sporich v. Superior Court (2000) 77 Cal.App.4th 422 superseded by statute on other grounds at 428.) Good cause in this context is established by facts that appear in the record and must be shown such that an impartial tribunal would be satisfied that the request may be granted without abuse of the inherent rights of the adversary. (Sporich supra, 77 Cal.App.4^th at 427, 428.)

Defendants have shown good cause for a second IME under the above definition. Defendants have provided the CV of both the previous physician, Dr. Klapper, and the proposed second physician, Dr. Spoonamore. (Marco-Schaller Decl. Exhs. B, C.)  These documents show that Dr. Klapper is an orthopedic surgeon specializing in lower extremity injuries. (See Exh. B.) Dr. Spoonamore, by contrast, is an orthopedic spinal surgeon. (See Exh. C.) It is undisputed that Plaintiff claims injuries to both his feet and his neck. Defendants state that while Dr. Klapper examined Plaintiff in the context of the injuries to his feet, he did not examine Plaintiff for any neck injuries. Dr. Spoonamore’s examination would be for the purpose of evaluating Plaintiff’s neck injuries.

Plaintiff argues that Defendants have not shown good cause because Dr. Klapper could have examined Plaintiff for neck injuries. Plaintiff points out that in the IME notice served for Dr. Klapper, it was stated that he might examine Plaintiff’s neck and upper extremity. (See Exh. B, p. 2.) Plaintiff argues that the failure of Defendants to have Dr. Klapper examine Plaintiff’s neck does not constitute good cause for another examination.

While the Court agrees that Defendants could have noticed a more comprehensive IME, good cause still exists to compel the second IME. It is without question that Plaintiff claims injuries to his neck. Defendants are seeking a medical examination which is directly relevant to the alleged neck injury. Physicians have different specialties and subspecialities, and a lower extremity orthopedic surgeon may not have the expertise to examine a patient for neck injuries.  Dr. Spoonamore is specifically a spinal surgeon, having done a fellowship in that area and would have qualifications more focused on the neck and spine that Dr. Klapper likely would not possess, as his CV does not focus on the spine.

Plaintiff cites to no authority for their argument that Dr. Klapper is compelled to examine the spine and specifically the neck just because the notice of the IME stated he might do so. Plaintiff’s argument on this front is contrary to the situation C.C.P. § 2032.220 specifically contemplates. If the first physician was always required to examine a subject in respect to all injuries, there would be no reason to have a statute explaining when more than one IME is appropriate.

Nor does the Court finds that the purpose of this second IME is to harass Plaintiff. Defendants have clearly demonstrated that the two examinations would be conducted by doctors with separate specialties. There is a well-defined, relevant purpose for requesting a second IME and there is no indication that Defendants are intending to harass Plaintiff. While the Court understands Plaintiff’s frustration at having to undergo a secondary examination, the fact remains that Defendants have demonstrated good cause.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Vardui Yepremyan and Levon Vardapetyan’s Motion to Compel Independent Medical Examination came on regularly for hearing on August 30, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION IS GRANTED.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT Vardui Yepremyan TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE:  August 30, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles