Judge: Lisa R. Jaskol, Case: 22STCV12026, Date: 2023-11-08 Tentative Ruling
Case Number: 22STCV12026 Hearing Date: December 26, 2023 Dept: 28
Having considered the moving and opposition papers, the Court rules as follows.
BACKGROUND
On April 8, 2022, Plaintiff Manuel De Jesus Mena (“Plaintiff”) filed this action against Defendants Khaira Transport, Inc. (“Khaira”), Juan Carlos Guzman Rodriguez (“Guzman”), Yuhwa Lung, and Does 1-100 for motor vehicle tort and general negligence.
On June 2, 2022, Defendant Yu Lung (erroneously served as Yuhwa Lung) (“Lung”) filed an answer and a request for a statement of damages.
On June 29, 2022, Khaira filed an answer.
On August 8, 2022, Guzman filed an answer.
On August 30, 2023, Lung filed a motion to compel Plaintiff’s attendance at a second medical examination, set for hearing on December 26, 2023. On December 12, 2023, Plaintiff filed an opposition.
On November 13, 2023, the Court granted Lung’s motion to reopen discovery in part and reopened discovery for the purpose of allowing Lung to conduct a second medical examination, two additional fact depositions, and inspection of Plaintiff’s vehicle.
Trial is currently scheduled for April 8, 2024.
PARTIES’ REQUESTS
Lung requests an order compelling Plaintiff to submit to a second medical examination on January 11, 2024, at 10:00 a.m., with Barry I. Ludwig, M.D., a neurologist, on a date to be determined.
Plaintiff asks the Court to deny the motion as moot.
LEGAL STANDARD
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 Plaintiff’s TBI claim and cognitive impairment, Lung asserts that a second medical examination is needed, this time with a neurologist. An orthopedic surgeon previously examined Plaintiff.
Plaintiff opposes the motion, stating it is moot based on the Court’s order reopening discovery. Plaintiff states that he will appear for a neurological defense medical examination to be set for a mutually-acceptable date and time “if and when noticed in accordance with the Court’s rulings [reopening discovery] and Code of Civil Procedure §2032.020 et seq.”
Based on Plaintiff’s agreement to appear for a second medical examination, the Court denies Lung’s motion as moot.
CONCLUSION
The Court DENIES AS MOOT Defendant Yu Lung’s motion to compel Plaintiff Manuel De Jesus Mena to attend a second medical examination.
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.