Judge: Michael E. Whitaker, Case: 21STCV05930, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCV05930    Hearing Date: December 8, 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

Defendants Steven Fein and Sheila Fein (collectively, “Defendants”) move for an Order compelling Plaintiff to submit to two (2) physical medical examinations during a time which is convenient for all parties and examining physicians, pursuant to Code of Civil Procedure sections 2032.310 and 2032.320. Specifically, Defendants request leave to conduct an orthopedic examination of Plaintiff (which will be performed by Andrew Hsu, M.D.), as well as a neurological examination of Plaintiff (which will be performed by Richard Gluckman, M.D.). 

ANALYSIS

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff . . . .”  (Code Civ. Proc., § 2032.220, subd. (a).)  “A defendant may make a demand under this article [to conduct one physical examination] without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.”  (Code Civ. Proc., § 2032.220, subd. (b).)  If any party desires to obtain discovery through more than one physical examination of plaintiff, “the party shall obtain leave of court.”  (Code Civ. Proc., § 2032.310, subd. (a).)  “The court shall grant a motion [requesting an additional medical exam] . . . only for good cause shown.”  (Code Civ. Proc., § 2032.320, subd. (a).)  A motion requesting more than one physical examination “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 [also] be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2032.310, subd. (b).)

The Court observes the instant action involves claims of personal injury.  Plaintiff’s Complaint alleges Plaintiff was retained by Defendants to perform tree trimming services upon Defendants’ residence.  (Compl., at p. 4.)  Plaintiff alleges Defendants negligently maintained the tree which Plaintiff was instructed to trim, and, as a result, Plaintiff fell from the tree and sustained serious injuries.  (Ibid. [“Plaintiff was lawfully on Defendants’ premises trimming a tree when he fell and sustained injuries, as a result of Defendants’ negligence.”].)  The Court additionally notes that the specific injuries which Plaintiff alleges to have suffered are identified within Plaintiff’s discovery responses, which were served upon Defendants.  Specifically, Plaintiff’s discovery responses state that, as a result of the alleged fall, Plaintiff suffered injuries to his knee, neck, back, foot, and head.  (Gates Decl., ¶¶ 5-7 [“Responding party’s primary complaints/injuries involve left knee pain, neck pain, left arm paresthesia, headaches, low back pain, and right metatarsal fracture.”].)  Subsequently, during Plaintiff’s deposition, Plaintiff additionally identified that he suffered a traumatic brain injury as result of the alleged fall.  (Id., ¶ 12 [“The plaintiff attorney then indicated the plaintiff is now making new allegations of pain in the jaw and is also making an allegation of traumatic brain injury.”].)  Plaintiff prays for damages against Defendants as a result of the aforementioned injuries. 

The Court further observes Defendants are entitled to demand one physical examination of Plaintiff, without leave of Court, as the present action is “a case in which . . . plaintiff is seeking recovery for personal injuries”.  (Code Civ. Proc., § 2032.220, subd. (a).)  Accordingly, while Defendants’ Motion presently requests a Court Order compelling Plaintiff’s submission to two (2) physical examinations—an orthopedic examination and a neurological examination—the Court concludes Defendants are entitled to complete one (1) of the aforementioned examinations without leave of Court.  (Ibid.)

Additionally, the Court opines, following a review of the submitted moving papers and accompanying evidence, Defendants have sufficiently demonstrated good cause warrants the completion of both physical examinations as demanded.  (Code Civ. Proc., §§ 2032.310, subd. (a), 2032.320, subd. (a).)  Plaintiff unequivocally contends he has suffered the following physical injuries following his fall from a tree upon Defendants’ real property: physical injuries to Plaintiff’s knew, neck, back, foot, and head, as well as a traumatic brain injury.  Gates Decl., ¶¶ 5-7, 12.)  Defendants provide the requested orthopedic examination will analyze, assess, and synthesize the physical injuries suffered by Plaintiff, specifically the alleged left foot fracture suffered by Plaintiff as well as the knee injuries suffered by Plaintiff.  Defendants additionally state the requested neurological examination will assess Plaintiff’s claimed traumatic brain injury.  The Court concludes Defendants should be permitted to assess the extent of Plaintiff’s alleged physical injuries pursuant to conducting the requested orthopedic examination and neurological examination of Plaintiff. 

Lastly, the Court observes Defendants have satisfied the meet and confer requirement enumerated within Code of Civil Procedure section 2032.310, and have sufficiently identified the details of the requested examinations as well as the identity of the examiners.  (Gates Decl., ¶¶ 20-23; Mot., at p. 9:10-16.) 

CONCLUSION AND ORDER

Having read and considered the moving papers, the Court finds that Defendants have established good cause for the requested physical examinations of Plaintiff.  Therefore, the Court grants Defendants’ Motion to Compel Medical Exam of Plaintiff, and orders Plaintiff to submit to physical examinations by Andrew Hsu, M.D. and Richard Gluckman, M.D. on dates and times noticed by Defendants, after Defendants meet and confer with Plaintiff regarding mutually agreeable dates and times for such examinations.

Defendants shall provide notice of the Court’s orders and file a proof of service regarding the same.