Judge: Lisa R. Jaskol, Case: 19STCV25174, Date: 2024-06-25 Tentative Ruling
All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.
Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line. If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.
Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.
If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.
Case Number: 19STCV25174 Hearing Date: June 25, 2024 Dept: 28
Having considered the moving, opposition, reply, supplemental, and objecting papers, the Court rules as follows.
BACKGROUND
On July 18, 2019, Plaintiffs Esmeralda Gomez (“Gomez”) and Glenda Rodriguez (“Rodriguez”) filed this action against Defendants Erika Lisbeth Lopez (“Lopez”) and Does 1-50 for negligence, loss of consortium, and vehicle use exception.
On December 17, 2019, Lopez filed an answer.
On July 27, 2020, Plaintiffs amended the complaint to include Defendant Stars Behavioral Health Group, Inc. (“Stars”) as Doe 12.
On October 6, 2020, Stars filed an answer.
On February 13, 2024, Lopez filed a motion to compel Gomez’s examination by a hand/wrist specialist, to be heard on May 6, 2024. On April 12, 2024, Plaintiffs filed an opposition. On April 19, 2024, Lopez filed a reply.
On May 6, 2024, the Court issued a tentative ruling, heard argument, and continued the hearing to June 25, 2024. The Court gave the parties leave to file supplemental declarations.
On June 20, 2024, Lopez filed a supplemental declaration by her counsel.
On June 21, 2024, Plaintiffs filed an objection to Lopez’s counsel’s supplemental declaration.
Trial is currently scheduled for September 17, 2024.
PARTIES’ REQUESTS
Lopez asks the Court to compel Gomez to attend an examination by a hand/wrist specialist.
Plaintiffs ask the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 2032.220 provides:
“(a) 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.
“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.
“(c) A demand 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 physician who will perform the examination.
“(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time.
“(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.”
(Code Civ. Proc., § 2032.220.)
Code of Civil Procedure section 2032.310 provides:
“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210) . . . , 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.
“(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides in part:
“(a) The court shall grant a motion for a physical . . . examination under Section 2032.310 only for good cause shown.
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
Lopez asks the Court to compel Gomez’s examination by an orthopedic surgeon who is a hand/wrist specialist. Lopez contends that she has established good cause because the examination is directly relevant to Plaintiffs’ claims, Lopez cannot obtain the information by other means, Gomez will use an expert to support her claim of a hand/wrist injury, Gomez is claiming ongoing injuries, and Gomez has placed her hand/wrist injuries in controversy.
Gomez has already submitted to three physical examinations, including one with an orthopedic surgeon. The orthopedic surgeon who conducted the examination was aware that Gomez claimed her hands and wrists were injured and had access to Gomez's medical records.
Lopez argues the Court should find good cause for an additional physical examination because Gomez (1) reported at her recent deposition that she had sustained severe hand and wrist injuries to both upper extremities, (2) demonstrated that she can no longer open either hand, and (3) testified that these injuries have deteriorated over time. (McCabe dec. ¶ 4.)
In the Court’s previous tentative ruling, the Court observed that Lopez had not asserted that the condition of Gomez’s hands and wrists had materially changed since Gomez’s prior examination by an orthopedic surgeon.
Lopez’s counsel’s supplemental declaration does not address whether the condition of Gomez’s hands and wrists have materially changed since Gomez’s examination by a defense orthopedic surgeon. Instead, the supplemental declaration provides a letter from Dr. Kuschner stating that he must conduct an in-person physical examination of Gomez to carry out a thorough and complete assessment and provide an opinion to a reasonable degree of medical certainty. The letter does not explain why Gomez’s previous defense examinations did not provide this information.
The Court does not find good cause for an additional defense examination. The Court denies the motion.
CONCLUSION
The Court DENIES the motion of Defendant Erika Lisbeth Lopez to compel Plaintiff Esmeralda Gomez’s examination by a hand/wrist specialist.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.