Judge Lee S. Arian, Case Number: 23STCV05655, Date: 2024-12-20 Tentative Ruling

This case stems from an incident that occurred on May 2, 2020 when Maria Flor Garcia-Gonzalez (Plaintiff) was attempting to board a bus owned and operated by the Los Angeles County Metropolitan Transportation Authority (Defendant). Plaintiff filed an initial Complaint on March 14, 2023, followed by the operative First Amended Complaint (FAC) on October 3, 2023.[1] The FAC alleges that as Plaintiff was attempting to step on to a bus, the doors of the bus closed causing Plaintiff to be trapped. (FAC, ¶12-13.) While trapped in between the doors, part of Plaintiff’s body was inside the bus and part of her body was outside the bus. (Id.) As the bus began to move, Plaintiff alleges she fell backward onto the ground suffering injury. (Id.)

The motion now before the Court is Defendant’s Motion to Compel a Second Physical Examination of Plaintiff (the Motion). Plaintiff opposes the Motion; Defendant replied.

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc. §2032.220(a), emphasis added.)

“If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff's response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand.” (Code Civ. Proc. §2032.250(a).)

If the same defendant requests a second doctor to perform a physical examination, a court order must be obtained and may only be granted on a showing of “good cause”. “Good cause” may be found where plaintiff claims additional injuries, or the plaintiff's condition is worsening; or even simply because of lapse of time. (Weil & Brown, Civ. Procedure Before Trial: Examination Upon Court Order (The Rutter Guide 2024) ¶ 8:1558.)

In its moving papers, Defendant argues a second independent medical exam (IME) by an orthopedic surgeon is necessary because the first IME was for a separate injury, Plaintiff’s alleged traumatic brain injury (TBI). The first IME occurred on July 23, 2024 and was completed by Dr. Paul E. Kaloostian (Dr. Kaloostian), a licensed physician specializing in neurosurgery. Defendant contends there is good cause for a second IME because new information was recently revealed to Defense counsel: Plaintiff is now alleging a new claim for bi-lateral knee surgery. (Moving Papers, 3:12-16.)

In opposition, Plaintiff argues that Defendant was well-aware of injury to both knees before the first IME occurred. Therefore, this injury is not new and there is no good cause for a second IME. Plaintiff also contends the motion is procedurally defective. In reply, Defendant provides an e-mail in which Plaintiff appears to agree to the second IME, under certain conditions. The Court will discuss the second IME with the parties. It notes the following to be addressed:

1. The thrust of Defendant’s argument is that the need for surgery on Plaintiff’s knee injuries is new information, and in order to properly assess damages Defendant needs to conduct a second IME. However, Plaintiff produced medical records on January 3, 2024 that detailed her bilateral knee injuries from her own medical provider Dr. Rajan Patel. (Opp. Papers, Exh. 2.) Moreover, on July 9, 2024, Plaintiff produced another report from Dr. Jonathan Frank (Dr Frank). Dr. Frank’s report contained a diagnosis of a sprain in the left knee, and an osteochondral lesion and possible meniscus tear in the right knee. (Opp. Papers, Exh. 3.) This is in addition to Plaintiff’s responses to Defendant’s Form Interrogatories served on January 3, 2024, where Plaintiff provided and stated her injuries as follows: “Plaintiff suffered a traumatic brain injury and injuries to neck, lower back, right shoulder, right elbow, right and left knee and chest.” (Opp Papers, Exh. 1, Response to Form Interrogatory No. 6.2.)

2. Defendant argues that Dr. Kaloostian as a neurosurgeon did not conduct an exam of Plaintiff’s alleged knee injuries, but solely the body parts related to her TBI claim. However, the initial IME conducted by Dr. Kaloostian listed both right and left knee pain as part of a list of injuries identified by Plaintiff that could possibly be examined by Dr. Kaloostian. (Notice of Lodging Exhibits in Support of Motion to Compel 2^nd IME, Exh. A.)

3. Plaintiff appears to have agreed to the Second IME, with conditions. See Exhibits H and I to Defendant’s Supplemental Exhibits.

Trial is currently scheduled for January 24, 2025. Plaintiff opposes the Motion; Defendant files a reply.

California Rules of Court, rule 3.1332, subdivision (c) states that although disfavored, the trial date may be continued for “good cause,” which includes (without limitation):

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

a. The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

b. The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

The court may also consider the following factors: “(1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Cal. Rules of Court 3.1332(d).)¿¿

Similar to Defendant’s concurrently filed Motion to Compel a Second Independent Medical Examination, the primary argument for the instant Motion to Continue Trial is that the need for surgery on Plaintiff’s knee injuries is new information, and in order to properly assess damages Defendant needs time to conduct a second independent medical examination (IME).

In its moving papers, Defendant cites to three cases arguing denial of a continuance will deprive the moving party of a fair hearing. Defendant cites to: Cohen v. Herbert (1960) 186 Cal.App.2d 488 (“Cohen”), Palomar Mortg. Co. v. Lister (1963) 212 Cal.App.2d 236 (“Palomar”), and Muller v. Tanner (1969) 2 Cal.App.3d 445 (“Muller”). Reliance on Cohen, Palomar, and Muller is misplaced for two primary reasons. First, the current iteration of Cal. Rules of Court 3.1332 is the result of three different changes to the rule. The earliest of which occurred in 1984. The most recent of which occurred in 2004 and has been effective since then. The most recent case Defendant cites to is the Muller decision authored in 1969.

Second, the facts of the three cited cases are wholly inapplicable to the case before the Court. Cohen was an action for appointment of a receiver, there the Court of Appeal dealt with the denial of a request for a one-week continuance. The Court of Appeal reversed the denial holding that the defendants who requested the denial in Cohen demonstrated both diligence and good faith, and that the time requested was reasonable. (Cohen, at 495.) The Court here sees the opposite, the medical records showing the knee injury at issue was more than sufficient notice for Defendant to inquire prior to the first IME; Defendant’s filings fail to address why an inquiry into the knee injury was not conducted sooner.

Palomar was a case where a one-day continuance was requested on the first day of trial but was denied. (Palomar, at 237.) The Court of Appeal reversed because not only had opposing counsel consented to the continuance, but no prejudice nor injury was evident. Additionally, the moving party’s attorneys were appearing in a separate case on the same day and could not be present for the first day of the Palomar trial. Those circumstances do not exist here.

Finally, Muller’s opinion addresses the denial of a motion to continue indirectly, however it should be noted that the Court of Appeal in Muller did not overturn the denial. Rather, the Muller opinion addresses the irregularities that prevented the plaintiff – a vexatious litigant – from having a proper hearing on the issues raised by defendant’s motion for a security deposit. The moving and reply papers fail to draw parallels between the cited cases and the case at bar.

Thus, the Court is disinclined to continue trial. It will, however, discuss the issue in concert with the issue of a second DME.

Hon. Lee S. Arian

Judge of the Superior Court

[1] On December 27, 2023, Plaintiff substituted the fictitious DOE 1 for Richard Walker, the alleged bus driver who is party to the suit, but not party to the instant motion.