Judge Lynne M. Hobbs, Case Number: 22STCV11535, Date: 2024-05-01 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV11535, Date: 2024-05-01 Tentative Ruling

Case Number: 22STCV11535 Hearing Date: May 1, 2024 Dept: 30

JUANA OLMOS vs GDL DELIVERY CORP., et al.

TENTATIVE

Defendant’s motion to compel an independent medical examination is GRANTED. Plaintiff Lee Shai Chiu Wu is ordered to submit to an examination before Dr. Akira Ishiyama, board certified in Otolaryngology, with a subspecialty in otology-neurotology, located at UCLA Audiology, 200 UCLA Medical Plaza, Suite 540, Los Angeles, CA 90095 for the audiogram at 4:00 p.m., and 10833 Le Conte Ave., Los Angeles, CA 90095 for the clinical examination with Dr. Ishiyama, at 5:00 p.m., on May 17, 2024.

Moving party to give notice.

Legal Standard

Code of Civil Procedure (“CCP”) section 2032.220(a) provides:

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.

CCP section 2031.310 states:

(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.

CCP section 2032.320(a) provides: “The court shall grant a motion for a physical or mental examination under¿Section 2032.310¿only for good cause shown.”

“Section 2036 defines a showing of ‘good cause’ as requiring that the party produce specific facts justifying discovery and 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 motion must state the time, place, identity and specialty of the examiner, and the "manner, conditions, scope and nature of the examination."¿(Code Civ. Proc., § 2032.310(b).) “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(d).)

The examination will be limited to whatever condition is “in controversy” in the action. (CCP § 2032.020(a).) This means the examination must be directly related to the specific injury or condition that is the subject of the litigation. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.) Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837 [wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer].) Discovery responses can also frame the issues regarding the injuries and damages alleged.

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of the plaintiff. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)

Discussion

As an initial matter, Plaintiff has filed an untimely opposition. “A trial court has broad discretion to overlook late-served papers and to resolve the matter on the merits.” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168 [“(E)ven if the service had been untimely, the trial court was vested with discretion to overlook the defect”]; see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.”].) The Court exercises its discretion and considers the opposition as Plaintiff’s counsel explains it was filed late due to a calendaring error.

Defendant moves to compel Plaintiff to undergo an independent medical examination (IME) with Otolaryngologist Dr. Akira Ishiyama. In the alternative, Defendants move for an order allowing an additional examination of Plaintiff with Otolaryngologist Dr. Ishiyama, arguing there is good cause because Plaintiff alleges a wide variety of permanent, ongoing injuries as a result of the accident, including neck pain, lower back pain, tinnitus, headaches, anxiety, sleep disturbances, bilateral calf pain, left thigh pain, mid back pain, dizziness, and depression. As a result of Plaintiffs orthopedic spine claims and pain management procedures, Defendant Rafael Famoso-Campos scheduled a medical examination with an orthopedic spine specialist, Mark Spoonamore, MD, and Defendant Lucio Famoso-Campos scheduled a medical examination with a pain management specialist, Joshua Prager, MD. In Plaintiffs verified responses to discovery, Plaintiff also alleges that she experiences ongoing tinnitus and dizziness as a result of the subject incident. (Sellers Decl., Exh. 2.) Plaintiff claims the tinnitus is getting worse and occurring 3-5 times per day and alleges the dizziness is happening every few days, especially in the morning. (Id.) Dr. Spoonamore and Dr. Prager will not evaluate Plaintiff's alleged tinnitus, which fall under the purview of a board-certified Otolaryngologist such as Dr. Ishiyama.

Plaintiff has provided no authority for the proposition that Defendants are collectively only entitled to one IME of Plaintiff. Nevertheless, as it appears all defendants are represented by the same attorneys, the argument is well taken. However, even if Defendants are only entitled to one IME, the Court shall order another one upon a showing of good cause. Defendant has shown good cause for the IME here. In light of their different medical specialties in different fields, the medical professionals identified by Defendant are likely to have different, yet probative, input about the nature and causes of Plaintiff’s injuries. In addition, Defendant has established that the other doctors will not evaluate Plaintiff’s complaints for tinnitus, which Plaintiff does not deny suffering from. Moreover, Plaintiff has retained her own experts in different medical specialties.

Lastly, Plaintiff argues that Defendant has not shown that the procedure that their otolaryngologist plans on using is not painful or intrusive. However, the notice states the testing will not be painful or intrusive. It is not clear what more Plaintiff argues should be done here.

As such, Defendant has shown good cause to compel an examination with Dr. Ishiyama. The motion is granted.

Conclusion

Therefore, Defendant’s motion to compel an independent medical examination is GRANTED. Plaintiff is ordered to submit to an examination before Dr. Akira Ishiyama, board certified in Otolaryngology, with a subspecialty in otology-neurotology, located at UCLA Audiology, 200 UCLA Medical Plaza, Suite 540, Los Angeles, CA 90095 for the audiogram at 4:00 p.m., and 10833 Le Conte Ave., Los Angeles, CA 90095 for the clinical examination with Dr. Ishiyama, at 5:00 p.m., on May 17, 2024.