Judge: Lisa R. Jaskol, Case: 21STCV17621, Date: 2023-12-26 Tentative Ruling
Case Number: 21STCV17621 Hearing Date: December 26, 2023 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On May 11, 2021, Plaintiffs Edith Gonzalez (“Edith Gonzalez”) and Noemi Gonzalez (“Noemi Gonzalez”) filed this action against Defendants Edward Clarkson, Rickey Dwight Walker (“Walker”), Los Angeles County Metropolitan Transportation Authority (“LACMTA”) and Does 1 through 50 for negligence.
On November 8, 2021, LACMTA filed an answer and a cross-complaint against Cross-Defendants Edward Clarkson, Edith Gonzalez, Noemi Gonzalez, and Roes 1-30 for negligence (property damage), equitable indemnity, apportionment of fault/contribution, and declaratory relief. On February 7, 2022, Edith Gonzalez and Noemi Gonzalez filed an answer.
On March 21, 2022, Walker filed an answer to the complaint.
On July 21, 2022, the Court dismissed Clarkson from the complaint without prejudice at Edith Gonzalez’s request.
On September 7, 2022, Edward Clarkston (erroneously served and sued as Edward Clarkson) filed an answer to LACMTA’s cross-complaint and a cross-complaint against Cross-Defendants Edith Gonzalez, Noemi Gonzalez, and Roes 1-50 for equitable indemnity, contribution, and declaratory relief.
On June 5, 2023, the Court dismissed the cross-complaint of Edward "Clarkson" without prejudice at his request.
On October 25, 2023, the Court dismissed Edith Gonzalez and Noemi Gonzalez from LACMTA’s cross-complaint with prejudice at LACMTA’s request.
On November 17, 2023, LACMTA filed a motion to compel Edith Gonzalez to attend a neurological independent physical examination and for sanctions. On December 1, 2023, LACMTA filed a notice of errata. On December 11, 2023, Edith Gonzalez filed an opposition. On December 15, 2023, LACMTA filed a reply.
PARTIES’ REQUESTS
LACMTA requests an order compelling Edith Gonzalez to submit to a neurological independent physical examination on January 11, 2024, at 10:00 a.m., with Board Certified Neurology Specialist, George Chow, M.D., located at 18370 Burbank Blvd., Suite 107, Tarzana, CA 91356. LACMTA seeks leave of Court for a second physical examination of Edith Gonzalez. LACMTA also requests sanctions.
Edith Gonzalez asks the Court to deny the motion.
LEGAL STANDARD
A. Independent medical examination
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.
“(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:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.
“(b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.
“(c) A stipulation by a party under this subdivision shall include both of the following:
“(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.
“(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.
“(d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.
“(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:
“(1) The court determines that there is good cause for the travel involved.
(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”
(Code Civ. Proc., § 2032.320.)
DISCUSSION
Citing Code of Civil Procedure section 2032.310, subdivision (a), LACMTA moves for leave of court to conduct a second physical examination of Edith Gonzalez.
The statute requires that a motion “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” and include a meet and confer declaration.
LACMTA’s motion complies with these requirements. It states that the examination will take place on January 11, 2024, at 10:00 a.m., at 18370 Burbank Blvd., Suite 107, Tarzana, CA 91356, and will be conducted by Dr. Chow, a board-certified neurologist. The separate statement describes the manner, conditions, scope, and nature of the examination. (The text is included at the end of this tentative ruling.)
The Court may grant a motion under Code of Civil Procedure section 2032.310 “only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (a).) “‘[G]ood cause’ [has been defined] as [1] requiring that the party produce specific facts justifying discovery and [2] that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) “The requirement of a court order following a showing of good cause is … designed to protect an examinee’s privacy interest by preventing an examination from becoming an annoying fishing expedition.” (Ibid.)
LACMTA’s motion establishes good cause based on Edith Gonzalez’s claims of injury (headaches, vomiting, dizziness, balance problems, loss of consciousness, confusion, anxiety, depression, fear of driving, concussion, difficulty sleeping, loss of memory, and difficulty concentrating) and treatment by a neurologist.
Plaintiffs have not asserted facts refuting LACMTA’s showing of good cause. Plaintiffs are not required to forego an examination by a neurologist simply because an orthopedic surgeon previously examined Edith Gonzalez.
The Court grants the motion and orders Edith Gonzalez to attend the scheduled examination with Dr. Chow.
The Court denies LACMTA’s request for sanctions. Plaintiffs were not required to stipulate to a second physical examination of Edith Gonzalez. In addition, Code of Civil Procedure section 2032.310 does not contain a sanctions provision.
CONCLUSION
The Court GRANTS Defendant Los Angeles County Metropolitan Transportation Authority’s motion to compel Plaintiff Edith Gonzalez to attend a second physical examination. The Court orders Plaintiff Edith Gonzalez to participate in a second physical examination on January 11, 2024, at 10:00 a.m., with Board Certified Neurology Specialist, George Chow, M.D., located at 18370 Burbank Blvd., Suite 107, Tarzana, CA 91356.
The manner, diagnostic tests and procedures, scope, and nature of the examination are as follows:
“The manner, scope, conditions and nature of this examination encompasses a physical and neurological examination of [Edith Gonzalez] with respect to [her] injuries claimed in this lawsuit. The examination may include assessing [Edith Gonzalez’s] mental status through speaking with the patient to assess alertness, comprehension, language, general fund of knowledge, attention and memory function. Visuospatial performance tasks, simple calculations and writing may be included.
“Clinical testing of cranial nerves I -XII will be performed through various means to assess vision, eye movement, facial strength and sensation, hearing, phonation and tongue movement, finger counting, and asking the plaintiff to follow a finger with the eyes.
“Non-invasive clinical testing of the plaintiff’s muscles including strength and coordination. The muscles are also examined for evidence of atrophy or abnormal motor tone, typically performed with the plaintiff standing or sitting by manually inspecting and testing each of the individual muscle groups. The plaintiff may also be asked to ambulate and perform turns in this part of the examination. Balance testing including standardize Romberg test, tandem gait and assessment of the ability to stand on either leg. The deep tendon reflexes are also evaluated by gently tapping over the tendons (at the biceps, triceps, knee/patella or the ankle/Achilles) to evaluate the motor response to this stimulus. This examination is not painful or invasive.
“A sensory examination is expected to occur as well. This testing is performed to determine the plaintiff’s ability to detect stimuli such as light touch, cold, vibration, and position. This is performed with the examiner’s hand, a cotton swab, and an aluminum tuning fork. The stimuli are applied to the skin and the patient is asked to report if they are able to detect them. The examination is not harmful, painful or invasive.
“This examination will not include any test or procedure that is painful, protracted or intrusive.”
The Court DENIES Defendant Los Angeles County Metropolitan Transportation Authority’s request for sanctions.
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.