Judge Gary I. Micon, Case Number: 23CHCV00169, Date: 2024-08-15 Tentative Ruling

Judge: Gary I. Micon, Case: 23CHCV00169, Date: 2024-08-15 Tentative Ruling

Case Number: 23CHCV00169 Hearing Date: August 15, 2024 Dept: F43

Dept. F43

Date: 8-15-24

Case #23CHCV00169, Jacqueline Chavez vs. Edward Kee Chang

Trial Date: 11-25-2024

MOTION TO COMPEL PLAINTIFF TO SUBMIT TO PHYSICAL EXAM WITH NEUROLOGIST

MOVING PARTY: Defendants Edward Kee Chang and Balance Therapy & Acupuncture, Inc.

RESPONDING PARTY: Plaintiff Jacqueline Chavez

RELIEF REQUESTED

An order compelling Plaintiff to submit to a second physical examination with a neurologist.

RULING: Motion is granted.

SUMMARY OF ACTION

On February 17, 2022, Plaintiff Jacqueline Chavez (Plaintiff) was in a motor vehicle accident. Since the accident. Plaintiff has complained of ongoing neurological issues, including headaches and memory loss, as well as dysfunction from the cranial nerve and neck pain. Defendants Edward Kee Chang and Balance Therapy & Acupuncture, Inc. (Defendants) have already had an orthopedic doctor examine Plaintiff for Plaintiff’s orthopedic complaints; now Defendants are requesting that Plaintiff be examined by a neurologist for Plaintiff’s neurological complaints.

Defendants filed their motion to compel Plaintiff to submit to the physical exam on June 11, 2024. Defendants argue in their motion that there is good cause for the Court to order a physical exam with a neurologist. They also maintain that they have satisfied the meet and confer requirement.

Plaintiff argues in her opposition that Defendants have not established good cause. Next, Plaintiff argues that the conditions sought be Defendants for the examination are oppressive and overbroad with respect to the timeframe. Plaintiff also argues that videotaping is not permitted, though Defendants’ motion makes no mention of videotaping. Finally, Plaintiff argues that Defendants should have served a separate statement.

Defendants argue in their reply that they have established good cause for the requested physical exam. Next, they argue that the time objections lacks merit because the exam should take no longer than 2 hours. They also point out that videotaping is not requested. Finally, Defendants argue that a separate statement is not required in this situation.

ANALYSIS

CCP § 2032.220 allows a party to obtain discovery by means of a physical examination when the other party’s physical condition is in controversy and permits a defendant to demand one physical examination by right.

In this case, Defendants used their one physical examination by right to have Plaintiff examined by an orthopedic doctor.

If a party seeks more than one physical examination, leave of court is required. (CCP § 2032.310(a).) A motion for examination under this section “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. (CCP § 2032.310(b).) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (CCP § 2032.320(a).) Generally, to find “good cause”, the court requires a showing of both (1) relevancy to the subject matter of the litigation, and (2) specific facts justifying the discovery, e.g., allegations showing the need for the information sought and lack of means for obtaining the information elsewhere. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840)

Multiple examinations are permitted on a showing of good cause. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) “Where Plaintiffs 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 a potential harassment of Plaintiff.” (Id.)

Here, Defendants seek an examination with a neurologist because of Plaintiff’s continuing claims of neurological injury including headaches, memory loss, and trigeminal neuropathy – and also of nausea, photophobia, and left side blurriness, of bilateral tingling associated with neck pain, and facial pain caused by nerve compression, for which Plaintiff herself has sought treatment with a neurologist. Additionally, records produced by Plaintiff indicated that it was recommended that she should have ongoing neurological treatment.

Based on the foregoing, it appears that there is good cause for Plaintiff to be examined by a neurologist.

As for Plaintiff’s argument that the conditions sought for the examination are oppressive because the notice of examination states that the exam should continue “so long as reasonably required,” Defendants state in their reply that the neurologist told them that the examination should not last more than two hours. This is a reasonable amount of time.

Next, Plaintiff argues that the examination cannot be videotaped. However, Defendants point out in their reply that they are not requesting that the examination be videotaped, so it is unclear why Plaintiff made this argument.

Finally, though Plaintiff argues that Defendants needed to file a separate statement, no separate statement was needed in this case because no response was provided to the request for discovery. (See Cal. Rules of Court Rule 3.1345(b)(1).) In this case, no request for discovery was ever served. Defendants filed this motion because they were required to file it after already using their first request for examination that was available as a matter of right. Any requests for examination beyond the first one required this motion.

Defendants’ motion to compel physical examination is granted.

ORDER

1. Defendants’ motion to compel physical examination is granted. Plaintiff is ordered to comply with Defendants’ notice of examination and appear for examination on August 23, 2024, at 12:30 p.m. at 2190 Lynn Road, Suite 380, Thousand Oaks, CA 91360. The examination should last no more than 2 hours.

2. Moving party to give notice.