Judge: Lisa R. Jaskol, Case: 20STCV48300, Date: 2024-02-26 Tentative Ruling
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Case Number: 20STCV48300 Hearing Date: March 14, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On December 17, 2020, Plaintiff Petrolina Marcial-Sernas (“Plaintiff”) filed this action against Defendants Carly Chiarella (“Defendant”) and Does 1-50 for negligence.
On February 1, 2023, Defendant filed an answer.
On February 13, 2024, Defendant filed a motion for leave to take Plaintiff’s physical examination in the specialty of neurology. The motion was set to be heard on March 14, 2024. Plaintiff did not file an opposition.
Trial is currently scheduled for June 12, 2024.
PARTY’S REQUESTS
Defendant asks the Court to order Plaintiff to appear for a physical examination on March 25, 2024 at 12:30 p.m. with Lorne Sheldon Label, M.D., whose specialty is neurology, at 2190 Lynn Road, Suite 380, Thousand Oaks, California 91360.
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), 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.
“(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 or mental examination under Section 2032.310 only for good cause shown.
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
Defendant moves for leave of court to take an additional physical examination of Plaintiff under Code of Civil Procedure sections 2032.310 and 2032.320. Plaintiff has asserted that she is experiencing neurological symptoms (headaches) and has received treatment from a neurologist in addition to treatment for orthopedic injuries. Therefore, Defendant argues, Defendant should be allowed to conduct a neurological examination in addition to the previous orthopedic examination.
Defendant has satisfied the requirements of Code of Civil Procedure sections 2032.310 and 2032.320. The Court finds good cause and grants the motion.
CONCLUSION
The Court GRANTS Defendant Carly Chiarella’s motion for leave to take Plaintiff Petrolina Marcial-Sernas’s physical examination in the specialty of neurology. The Court orders Plaintiff Petrolina Marcial-Sernas to appear for a physical examination on March 25, 2024 at 12:30 p.m. (or on another date and time on which the parties agree) with Lorne Sheldon Label, M.D., whose specialty is neurology, at 2190 Lynn Road, Suite 380, Thousand Oaks, California 91360.
The purpose of the examination is to determine, evaluate, and assess Plaintiff’s physical condition and claims of injury in controversy in the specialty of neurology. Claims of continuing, ongoing, or permanent problems, if any, including claims for future care, are within the examination’s scope.
The examination will be consistent with the practices of neurology in Southern California and consultations in connection with those practices. It will consist of procedures and tests routinely used by physicians examining patients for conditions such as those Plaintiff alleges in this action, including the taking of an oral history. The examination may include taking a medical history during which the examiner will evaluate response to treatment along with a past medical history focused on the affected body parts and systems. The examiner will obtain current chief complaints and then perform a physical examination focused on the claimed injuries. The examination shall not exceed six hours.
The examination will include a cranial nerve exam, motor exam checking range of motion, strength, reflexes, and tone, including palpation, of the head, neck, upper back, and shoulders, stance and gait exam, and sensory exam of upper extremities, coordination, sensory cerebellar exam, mental status exam, and Montreal cognitive assessment.
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.