Judge: Michael E. Whitaker, Case: 19STCV22076, Date: 2022-12-15 Tentative Ruling

Case Number: 19STCV22076    Hearing Date: December 15, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Erick Rojas and Maria Perez (collectively, Plaintiffs) sued Defendant Pedro Barrera (Defendant) based on a motor vehicle collision.  Defendant moves to compel Plaintiff Maria Perez (Perez) to submit to a neurological examination by Robert Freundlich, M.D. (Freundlich), in addition to an orthopedic examination.  Plaintiffs have not filed an opposition to the motion.

ANALYSIS

When the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may obtain a physical examination of the plaintiff.  (Code Civ. Proc., §§ 2032.020, 2032.220.)  A defendant is permitted to one physical examination of the plaintiff in a personal injury action on demand. (Code Civ. Proc., § 2032.220, subd. (a).)   

If the defendant seeks to obtain an additional physical examination of the plaintiff, the defendant must obtain leave of court. (Code Civ. Proc., § 2032.310, subd. (a).)  A motion to compel an additional physical examination must “specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination . . . ,” and must include a meet and confer declaration. (Code Civ. Proc., § 2032.310, subd. (b).)  Additionally, the defendant must make a showing of “good cause” to obtain the second physical examination.  (Code Civ. Proc., § 2032.320, subd. (a).)  Under the Discovery Act, there is no limit on the number of mental or physical examinations, provided that a showing of good cause is made to justify more than one mental or physical examination of a party. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) The Shapira court also noted that “multiple examinations should not be ordered routinely; the good cause requirement will check the potential harassment of plaintiffs by repetitive examinations,” and “multiple examinations by medical specialists in different fields” may be necessary based upon a plaintiff's claimed injuries.  (Ibid.)  

Here, Defendant fails to publish specific facts justifying the discovery requested, such as what Perez has stated in her discovery responses that warrants a neurological examination in addition to an orthopedic medical examination.  Defendant generally states that Plaintiff intends to claim that she sustained a head injury and suffers from frequent migraines.  However, Defendant has not proffered any discovery responses, pleadings, or declarations which establish that Perez is making these claims.  Without such information, the Court cannot find that Defendant has established good cause for the neurological examination of Perez. 

CONCLUSION

Therefore, the Court denies without prejudice Defendant’s motion to compel the neurological examination of Perez.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.