Judge Lisa K. Sepe-Wiesenfeld, Case Number: 21STCV06169, Date: 2023-09-13 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 21STCV06169, Date: 2023-09-13 Tentative Ruling

Case Number: 21STCV06169 Hearing Date: September 13, 2023 Dept: N

TENTATIVE RULING

Defendant Davidson Hotel Company LLC’s Motion to Compel Physical Inspection is GRANTED in part. The parties shall meet and confer about a second physical examination to allow for the taking of photographs within thirty (30) days of entry of this order. Defendant is limited to observing and documenting only those tattoos that may have been visible on Plaintiff John Doe at the time of the subject incident.

Defendant Davidson Hotel Company LLC to give notice.

REASONING

Code of Civil Procedure section 2032.310, subdivision (a), provides that “[i]f any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.” “A motion for an examination under subdivision (a) 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Code Civ. Proc., § 2031.320, subd. (a).) Demonstrating good cause requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action of reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)

Defendant Davidson Hotel Company LLC (“Defendant”) moves the Court for an order to compel Plaintiff John Doe (“Plaintiff”) to appear for an inspection so his tattoos may be photographed, including his legs. Defendant represents that the requested photography is relevant to Plaintiff’s potential gang affiliation, which would be relevant to Defendant’s defenses in this action and to Plaintiff’s credibility, and requiring Plaintiff to appear to be photographed at a reasonable time and location would not be unduly burdensome.

First, Plaintiff opposes the motion on the ground that Defendant’s motion papers were not timely, as the papers should have been served at least 16 court days before the hearing, with a two-day extension for electronic service, but the papers were not served until August 22, 2023. (See Code Civ. Proc., §§ 1005, 1013, subd. (a).) Defendant concedes that the motion was not served until August 22 due to a technical issue (Reply, p. 2, ll. 12-15.) While Defendant’s motion papers were untimely, the untimeliness would not result in a denial of the motion; rather, the Court could simply continue the hearing to allow Plaintiff sufficient time to oppose the motion, but Plaintiff filed an opposition on the merits. It follows that the untimeliness of the motion was harmless, such that the Court considers the merits of Defendant’s motion.

The Court finds there is good cause to order the requested physical examination for photographs. Plaintiff’s complaint tends to suggest that the stabbing incident was random, as Plaintiff was merely present in the subject hotel, and Defendant Doe 1 had harassed other individuals before approaching Plaintiff. (Compl., p. 5.) However, witnesses have reported that Doe 1 “was using gang language prior to the attack,” Doe 1 identified himself as a member of the Eight Tray Gangster Crips during the confrontation, and, according to the hotel’s front desk manager, Plaintiff said someone had ratted him out, suggesting a possible gang affiliation, despite Plaintiff’s denial that he is a member of a gang. (Mot., pp. 1-2.) Doe 1’s understanding of Plaintiff’s possible gang affiliation would be relevant to Defendant’s ability to present its defense, such that Defendant should be permitted to obtain such relevant evidence.

However, Defendant does not represent that Plaintiff and Doe 1 knew each other in some capacity; it follows that if Doe 1 attacked Plaintiff based on Plaintiff’s tattoos, it would only be based on the tattoos which were visible to Plaintiff at the time of the attack. Put simply, the Court is not inclined to allow Defendant to photograph Plaintiff’s entire body in an attempt to contradict his statements that he is not a member of a gang, particularly because Plaintiff’s claims are ones for negligence. Defendant seeks to go on a fishing expedition without presenting any evidence that Plaintiff is, in fact, a member of a gang, and such an affiliation is largely irrelevant to determining whether Defendant failed in its duty to keep Plaintiff safe from Doe 1 at the hotel. This is not a criminal case to determine whether Plaintiff is a member of a gang, and the trier of fact can determine on its own whether Plaintiff’s statements about his gang affiliation are credible without requiring Plaintiff to submit for photographs of his entire body, including that which was not visible to Doe 1 at the time of the incident.

Accordingly, Defendant Davidson Hotel Company LLC’s Motion to Compel Physical Inspection is GRANTED in part. The parties shall meet and confer about a second physical examination to allow for the taking of photographs within thirty (30) days of entry of this order. Defendant is limited to observing and documenting only those tattoos that may have been visible on Plaintiff John Doe at the time of the subject incident. Insofar as Plaintiff’s counsel requests recovery of fees and costs for a second physical inspection, that request is DENIED.