Judge: Michael E. Whitaker, Case: 21STCV00600, Date: 2022-09-27 Tentative Ruling

Case Number: 21STCV00600    Hearing Date: September 27, 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

Plaintiff James Ward (“Plaintiff”) sued Defendants Pauline Karas and Glenn Boghosian (collectively, “Defendants”) based on a motor vehicle collision.  Defendants move to compel Plaintiff to undergo a neurological examination with Dr. Ted Evans because Plaintiff claims he sustained a concussion, headaches and a traumatic brain injury from the vehicle collision.  Plaintiff opposes the motion.  Defendants reply to the opposition.

ANALYSIS

If a defendant seeks to obtain an additional physical examination of a plaintiff, the defendant must obtain leave of court. (Code Civ. Proc., § 2032.310, subd. (a).)  “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.”  (Code Civ. Proc., § 2032.310, subd. (b).) 

Further, “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, subd. (d); see also Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 260 [“The court is to describe¿in detail¿who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed.  The way to describe these ‘diagnostic tests and procedures’—fully¿and¿in detail—is to list them by name”].)¿¿ 

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.)

Defendants claim a “neurological examination” is needed because Plaintiff maintains he suffered injuries such as a concussion, headaches and a traumatic brain injury as a result of the vehicle collision with Defendants.  (Declaration of Robert B. Katz, ¶ 3.)  In particular, Plaintiff testified at his deposition that he hit his head after impacting Defendants’ vehicle and was told he suffered from a concussion by health care providers.  (Declaration of Robert B. Katz, ¶ 5.)  Moreover, Defendants assert that Plaintiff underwent a neurological examination although Plaintiff could not recall the examination at the Advanced Center for Neurology and Headache.  (Declaration of Robert B. Katz, ¶ 6.) 

In opposition, Plaintiff asserts, in part, that Defendants’ motion is defective because Defendants fail to indicate that the examination will be performed “by a licensed physician or other appropriate licensed health care practitioner.”  (Code Civ. Proc., § 2032.020, subd. (b).)  Further, Plaintiff argues that Defendants’ motion is flawed because Defendants have not specified the time, manner, conditions, scope and nature of the examination as required under Section 2032.010.  The Court agrees with Plaintiff on both points. 

In reply, Defendants assert they have complied with Section 2032.310 as set forth in the notice of motion.  The Court disagrees as the assertions in the notice only result in uncertainty as to the nature of the examination sought by Defendants.  In particular, Defendants state in the notice, page 2:

• Dr. Evans’ interview / mental status examination portion will involve history taking and observation of Plaintiff for the purpose of gathering information in specific areas.

   

• Pertinent areas of inquiry with regard to Plaintiff’s background include developmental history, education, employment, social and marital history, legal history, (such as disability claims, if any), general medical history, prior psychiatric history, substance use and family history. Dr. Evans will elicit from Plaintiff a detailed account of the onset and course of his psychological disorder(s) and his emotional problems related to the alleged conduct of the Defendants, culminating in a review of current psychiatric and physical complaints.

   

• No duplicative testing, or overlaps in testing, will be undertaken on Plaintiff.

Defendants’ description of the examination to be performed by Dr. Evans begs the question:  Are Defendants seeking a mental examination or a physical examination (neurological examination)?  Although psychiatry and neurology are related health care disciplines, the distinction between the two disciplines is critical for purposes of Defendants’ motion.  At best, Defendants motion is confusing which is exacerbated by the fact that Defendants fail to identify Dr. Evan’s health care specialty, and as such, the Court finds the motion lacks the specificity required per Sections 2032.310 and 2032.320.

The Court therefore denies Defendants’ motion as procedurally defective without prejudice.  Defendants shall provide notice of the Court’s ruling and file a proof of service of such.