Judge: Lisa R. Jaskol, Case: 21STCV40424, Date: 2024-02-20 Tentative Ruling

Case Number: 21STCV40424    Hearing Date: February 20, 2024    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On November 3, 2021, Plaintiffs Melissa Randazzo (“Randazzo”) and David Ontiveros filed this action against Defendants RFP Red Lobster, LLC, Red Lobster Hospitality, LLC, Red Lobster Management, LLC, Terry Bainbridge, and Does 1-100 for premises liability, general negligence, and loss of consortium. 

On February 3, 2022, Defendants RFP Red Lobster, LLC, Red Lobster Hospitality, LLC, Red Lobster Management, LLC, and Terry Bainbridge (“Defendants”) filed an answer. 

On October 12, 2023, Defendants “FRP Red Lobster Hospitality, LLC,” Red Lobster Management, LLC, and Terry Bainbridge (“Moving Defendants”) filed a motion for an order compelling Randazzo to attend a second independent medical examination.  The motion was set for hearing on December 14, 2023.  On December 1, 2023, Randazzo filed an opposition. On December 7, 2023, Moving Defendants filed a reply.  The Court continued the hearing to February 20, 2024. 

Trial is currently scheduled for August 15, 2024. 

PARTIES’ REQUESTS 

Moving Defendants request that the Court order Randazzo to attend a second independent medical examination at which Dr. Barry I. Ludwig can “examine [Randazzo], as it pertains [to] the claimed injury and damages, by asking relevant and necessary questions and conduct[ing] a mental status examination.”  (Motion p. 2.)  Moving Defendants also request sanctions. 

Randazzo requests that the Court 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), 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. 

* * *

“(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. . . ." 

(Code Civ. Proc., § 2032.320, subds. (a), (d).) 

DISCUSSION 

On June 5, 2023, Defendants noticed Randazzo’s independent medical examination with Dr. Ludwig for July 25, 2023.  The notice specified that Dr. Ludwig would conduct a physical examination.  Defendants did not seek leave of court to conduct a mental examination.

On July 25, 2023, Dr. Ludwig sent Defendants’ counsel a report describing his findings.  Dr. Ludwig stated that Randazzo complained of headaches, neck pain, dizziness, depression, and memory impairment.  However, Dr. Ludwig stated, he “was not allowed to ask if the patient had any of [these] symptoms in the one year prior to the subject accident,” “was not allowed to ask about the patient's past medical history, review of systems, family history or social history,” or “her education, occupation or living arrangement.”  In addition, Dr. Ludwig “was not allowed to do a mental status examination despite the fact that the patient was having cognitive symptoms.” 

Moving Defendants now argue that Randazzo improperly refused to answer Dr. Ludwig’s questions about her past medical history, education, occupation, and living arrangement. 

Citing Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 745-746 (Golfland), Randazzo argues that she was not required to answer these questions because Moving Defendants had deposed Randazzo before the July 25, 2023 independent medical examination and obtained her medical records in discovery.  Requiring Randazzo to answer Dr. Ludwig’s questions, according to Randazzo, would allow Moving Defendants to conduct what amounts to a second deposition. 

In Golfland, the Court of Appeal held the trial court could properly prevent the examining doctor from eliciting from the plaintiff another “version of the facts and circumstances of the accident” because the plaintiff had already testified about these facts at his deposition.  (Golfland, supra, 108 Cal.App.4th at p. 745.)  But the trial court “could not properly limit [the doctor’s] questioning of plaintiff with respect to other matters affecting plaintiff’s psychiatric condition, such as symptoms, perceptions, relationships, et cetera.”  (Id. at p. 746.)  Holding the trial court abused its discretion in barring these questions, the Court of Appeal reversed and remanded with directions replace the challenged order with an order allowing the doctor to take a history from the plaintiff.  (Ibid.; see id. at pp. 745-746 [“As our
Supreme Court has said in a slightly different context, ‘ “ ‘The basic tool of
psychiatric study remains the personal interview, which requires rapport
between the interviewer and the subject’ ” ’ ” (quoting Edwards v. Superior
Court (1976) 16 Cal.3d 905, 910)].)  Accordingly, Golfland does not support Randazzo's argument that her previous deposition and discovery responses allowed her to refuse to answer Dr. Ludwig's questions. 

Based on Golfland, the Court concludes that Moving Defendants are entitled to conduct a second independent medical examination at which Randazzo must answer Dr. Ludwig’s questions about her past medical history, education, occupation, and living arrangement. 

Moving Defendants also argue that Randazzo improperly refused to submit to a mental status examination on July 25, 2023.  But Moving Defendants were not entitled to conduct a mental status examination on July 25, 2023 because they had not obtained leave of court under Code of Civil Procedure section 2032.310, subdivision (a).  (See Golfland, supra, 108 Cal.App.4th at p. 745 [“A party seeking a mental examination must obtain leave of court, which the court shall grant “only for good cause shown’ ”].) 

The Court construes Moving Defendants’ motion as one seeking leave to conduct a mental examination under Code of Civil Procedure section 2032.310.  Under the statute, the moving party must shall specify, among other things, the "manner, conditions, scope, and nature of the examination . . . ."  (Code Civ. Proc., § 2032.310, subd. (b).)  Moving Defendants have not complied with these requirements.  The Court denies the motion for leave to conduct a mental examination without prejudice. 

The Court denies Moving Defendants’ request for sanctions. 

CONCLUSION 

The Court GRANTS IN PART the motion of Defendants “FRP Red Lobster Hospitality, LLC,” Red Lobster Management, LLC, and Terry Bainbridge to compel Plaintiff Melissa Randazzo to attend a second independent medical examination.  The Court orders Plaintiff Melissa Randazzo to attend a second independent medical examination with Dr. Barry I. Ludwig limited to questions about Plaintiff Melissa Randazzo’s past medical history, family history, social history, education, occupation and living arrangement, as well as follow-up questions that Dr. Barry I. Ludwig in his professional judgment deems necessary to complete the physical examination based on Plaintiff Melissa Randazzo’s responses to the questions listed above. 

The Court DENIES without prejudice the motion of Defendants “FRP Red Lobster Hospitality, LLC,” Red Lobster Management, LLC, and Terry Bainbridge for leave to conduct a mental examination. 

The Court DENIES the request of Defendants “FRP Red Lobster Hospitality, LLC,” Red Lobster Management, LLC, and Terry Bainbridge for sanctions. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file proof of service of this ruling with the Court within five days.