Judge: Lisa R. Jaskol, Case: 22STCV21608, Date: 2023-11-15 Tentative Ruling

Case Number: 22STCV21608    Hearing Date: December 8, 2023    Dept: 28

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

BACKGROUND 

On July 5, 2022, Plaintiffs Christina Choi (“Choi”) and King Yue Wong (“Wong”) filed this action against Defendants Monique Marrissa Cancino (“Cancino”), the City of Santa Monica (“City”), and Does 1-50 for negligence, vicarious liability, violation of Vehicle Code section 17001, and negligence under Government Code section 820, subdivision (a). 

On September 22, 2022, Cancino and the City (“Defendants”) filed an answer. On September 27, 2022, Defendants filed an amended answer. 

On November 7, 2023, the City filed an amended motion to compel Choi to undergo a physical evaluation with Alfredo A. Sadun, M.D., Ph.D., a neuro-ophthalmologist and board-certified ophthalmologist, including dilation of Choi’s eyes, on January 9, 2024, at 10:45 a.m., 625 South Fair Oaks Ave., Suite 280, Pasadena, CA 91105, or a mutually convenient date and time no later than January 30, 2024.  The motion was set for hearing on December 8, 2023. On November 20, 2023, Plaintiff filed an opposition. On December 1, 2023, the City filed a reply. 

Trial is currently scheduled for March 28, 2024. 

PARTIES’ REQUESTS 

The City requests that the Court order Choi to undergo a physical evaluation with Alfredo A. Sadun, M.D., Ph.D., a neuro-ophthalmologist and board-certified ophthalmologist, including dilation of Choi’s eyes, on January 9, 2024, at 10:45 a.m., 625 South Fair Oaks Ave., Suite 280, Pasadena, CA 91105, or a mutually convenient date and time no later than January 30, 2024. 

Plaintiff requests that the Court deny the motion. 

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. 

“(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. 

“(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, subds. (a), (d), (e).) 

Code of Civil Procedure section 2032.410 provides: 

“If a party is required to submit to a physical or mental examination under Articles 2 (commencing with Section 2032.210) or 3 (commencing with Section 2032.310), or under Section 2016.030, but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” 

(Code Civ. Proc., § 2032.410.)  

DISCUSSION 

Choi previously submitted to examinations by a neurologist and an orthopedist.  The City argues that good cause supports a third physical examination because Choi continues to complain of symptoms involving her eye, including double vision.  Dr. Sadun has determined that a neuro-ophthalmological examination of Choi is needed to determine the type of injury that Choi experienced in her eye. 

The City states that the examination will be conducted under standard office conditions and will consist of the taking of history, present status, physical examination, and the scope of examination may include, but is not limited to, ophthalmology, fundus photography, optical coherent tomography, visual field testing, and possibly dilation of the eyes. 

Choi opposes the request for an order compelling the examination but asks that, if the Court grants the order, the Court impose the following conditions: 

1. The examination be done at the Jules Stein Eye Institute rather than Pasadena.

2. The examiner be precluded from dilating Plaintiffs eyes.

3. The examination be the last physical examination of Plaintiff.

4.  The examination be limited in time to one hour. 

The Court finds good cause for the examination.  The examination will take place at Dr. Sadun’s office in Pasadena, which is approximately 25.1 miles from Choi’s home.  (See Code Civ. Proc., § 2032.320, subd. (e) [place of examination may be more than 75 miles from residence of person to be examined only if court determines there is good cause for the travel involved and court orders moving party to pay examinee's travel expenses].)  Although dilation of the eyes is more intrusive than, for example, simple observation of the eye, it is a routine and generally painless procedure whose effects are temporary.  Dr. Sadun may dilate Choi's eyes as part of the examination.  The Court will not preclude the City from seeking additional examinations subject to the requirement of showing good cause.  The City does not object to limiting the examination to one hour. 

The Court grants the motion. 

CONCLUSION 

The Court GRANTS Defendant City of Santa Monica’s motion to compel Plaintiff Christina Choi’s physical examination.  The Court orders Plaintiff Christina Choi to undergo a physical evaluation with Alfredo A. Sadun, M.D., Ph.D., a neuro-ophthalmologist and board-certified ophthalmologist, including dilation of Choi’s eyes, on January 9, 2024, at 10:45 a.m., 625 South Fair Oaks Ave., Suite 280, Pasadena, CA 91105, or a mutually convenient date and time no later than January 30, 2024. 

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.