TENTATIVE RULING

Defendant/Cross-Complainant/Cross-Defendant City of Culver City’s Motion to Compel Second Physical Examination of Plaintiff is DENIED.

Defendant/Cross-Complainant/Cross-Defendant City of Culver City to give notice. 

REASONING

Defendant/Cross-Complainant/Cross-Defendant City of Culver City (“the City”) moves for leave to conduct a second physical examination of Plaintiff Treasure Quarker (“Plaintiff”) with orthopedic surgeon Clive Segil, M.D., on the grounds that Plaintiff has claimed orthopedic injuries and ongoing mental and emotional injuries, and due to the passage of time, a second physical examination is necessary. Plaintiff has refused to appear for a second examination, and she opposes the motion on the ground that the City’s motion is actually a thinly veiled motion to continue trial, the City delayed in inquiring about a second physical examination, and Plaintiff’s primary injury is an amputated leg, such that there has not been a substantial change in her physical condition that would warrant a second examination.

Code of Civil Procedure section 2032.310 governs physical and mental examinations and states, in relevant part as follows:

(a) If 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.

(b) 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.) “As a general matter, a defendant may obtain a physical or mental examination of the plaintiff . . . if the plaintiff has placed his or her physical or mental condition in controversy.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258.)

The City has identified the identity and specialty of the person who will perform the proposed orthopedic examination, but the motion is otherwise insufficient to warrant a second physical examination. First, the purported meet and confer efforts consist only of sending a letter to Plaintiff’s counsel demanding a second physical examination “[d]ue to the passage of time” without describing why the passage of time would warrant a second examination. (Mot., Moore Decl. ¶ 4, Ex. B.) Second, the City has failed to identify the time, place, manner, conditions, scope, and nature of the examination as required for this type of motion. The failure to describe the scope and nature of the examination prevents the Court from engaging in a meaningful analysis of whether the examination may be warranted under the facts of the case. Third, the City fails to set forth any facts that would allow the Court to conclude that Plaintiff’s physical state has changed in any regard or that Plaintiff will assert any physical change at trial. Finally, the failure to identify a time and place for the examination makes it such that the Court cannot determine whether the examination can occur before the current trial date or whether a trial continuance would be necessary. For these reasons, Defendant/Cross-Complainant/Cross-Defendant City of Culver City’s Motion to Compel Second Physical Examination of Plaintiff is DENIED.