Judge: Melvin D. Sandvig, Case: 23CHCV00183, Date: 2024-06-20 Tentative Ruling
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Case Number: 23CHCV00183 Hearing Date: June 20, 2024 Dept: F47
Dept. F47
Date: 6/20/24
TRIAL DATE: 10/7/24
Case #23CHCV00183
MOTION TO
COMPEL SECOND MEDCIAL EXAM OF PLAINTIFF
Motion filed on 5/15/24.
MOVING PARTY: Defendant Dariush
M. Shokri
RESPONDING PARTY: Plaintiff Joyce Mabanga
RULING:
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of a motor vehicle accident that
occurred on 2/25/21 in Chatsworth, California.
As a result of the accident, Plaintiff Joyce Mabanga (Plaintiff) claims
to have suffered various injuries, which are still ongoing, including neck
pain, left shoulder pain, low back, left ankle pain, tinnitus, and ringing and
popping in ears.
Plaintiff has previously submitted to an independent
medical examination (IME) with Dr. Luke Macyszyn, a board- certified
neurosurgeon, to evaluate spinal and neurological injuries. Due to Plaintiff’s tinnitus claim, which
Plaintiff claims is constant and has caused her hearing to worsen since the
accident, Defendant Dariush M. Shokri (Defendant) requested that Plaintiff submit
to a second IME to evaluate Plaintiff’s ongoing hearing issues. Plaintiff will not submit to a second IME
without a court order.
Therefore, on 5/15/24, Defendant filed and electronically
served the instant motion which seeks an order compelling Plaintiff to submit
to a second medical examination by Dr. Hamid Djalilian, M.D., an
otolaryngologist (ENT), on a date to be determined, to evaluate Plaintiff’s
tinnitus complaint. The Court notes that
the motion was served on the email address of record for Plaintiff’s counsel (litigation@alglegal.com) at the time
of service on 5/15/24. However, one week
later on 5/22/24, Plaintiff’s counsel filed and served a notice of change of
handling attorney which requests that litigation@alglegal.com
be removed from future correspondence and that the firm would only accept
service of pleadings, discovery and motions at AATeam@alglegal.com. Plaintiff has not opposed or otherwise
responded to the motion.
ANALYSIS
A party may obtain discovery regarding any matter that is
relevant to the subject matter of the action.
CCP 2017.010.
A party may conduct discovery by means of a physical
examination of a party in an action in which the physical condition of that
party is in controversy. CCP 2032.020. Plaintiff has placed her hearing
loss/tinnitus in controversy in this action based on her claim to have suffered
such injuries as a result of the accident.
(See Gonter Decl. ¶¶2-4, 6-9, Ex.A-C).
CCP 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.”
Since Defendant is seeking a second physical examination
of Plaintiff and Plaintiff did not consent to the exam, Defendant must obtain
leave of court. See CCP 2032.220(a);
CCP 2031.210; (Gonter Decl. ¶¶9-14, Ex.D, E).
Based on Plaintiff’s claim that she has suffered from
tinnitus and hearing loss as a result of the accident, Defendant has shown the requisite good cause
for the requested second examination.
CCP 2032.320(a). Although the
motion indicates that the exam will include clinical interview and non-invasive
tests, to include but not limited to use of surgical microscope, complete
audiometric testing, tympanometry, OAE screening, Tyms and Acoustic Reflex, the
proposed order lodged with the motion does not include all of the information as
required by CCP 2032.320(d).
CONCLUSION
Within the next 7 days, the parties are ordered to meet
and confer regarding the date and time of the examination which shall be
scheduled to occur within the next 30 days.
On or before 7/3/24, Defendant is ordered to submit an amended proposed
order which complies with CCP 2032.320(d) which provides:
“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.”