Judge: Michael P. Linfield, Case: 19STCV45653, Date: 2022-12-08 Tentative Ruling

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Case Number: 19STCV45653    Hearing Date: December 8, 2022    Dept: 34

SUBJECT:         Motion to Compel Further Examination of Plaintiff Douglas Stork by Dr. Jonathan Corren and for Sanctions in the Amount of $2,475 Against Plaintiff Douglas Stork and His Counsel

Moving Party:  Defendant BLK Properties, LLC

Resp. Party:    Plaintiff Douglas Stork

SUBJECT:         Motion to Compel Further Examination by Dr. Jonathan Corren of Plaintiff Nicole Abramson and Request for Sanctions in the Amount of $2,475 Against Plaintiff Nicole Abramson and Her Counsel

Moving Party:  Defendant BLK Properties, LLC

Resp. Party:    Plaintiff Nicole Abramson

Defendant BLK Properties, LLC’s Motion to Compel Further Exam of Abramson is DENIED without prejudice. The Request for Sanctions is DENIED.

Defendant BLK Properties, LLC’s Motion to Compel Further Exam of Stork is DENIED without prejudice. The Request for Sanctions is DENIED.

BACKGROUND:

On December 17, 2019, Plaintiffs Nicole Abramson and Douglas Stork filed their Complaint against Defendants Anita Kovacic, Marine View Management, Inc., and BLK Properties, LLC on causes of action for breach of implied warranty of habitability, negligence, and breach of contract. This case regards damages Plaintiff allege to have suffered and continue to suffer due to the mold in their home.

On April 6, 2021, Plaintiffs filed their First Amended Complaint.

On June 8, 2021, Defendants filed their Answer to the First Amended Complaint.

On October 26, 2022, Defendant BLK Properties, LLC filed: (1) Motion to Compel Further Examination of Plaintiff Douglas Stork by Dr. Jonathan Corren and for Sanctions in the Amount of $2,475 Against Plaintiff Douglas Stork and His Counsel (“Motion to Compel Further Exam of Stork”); and (2) Motion to Compel Further Examination by Dr. Jonathan Corren of Plaintiff Nicole Abramson and Request for Sanctions in the Amount of $2,475 Against Plaintiff Nicole Abramson and Her Counsel (“Motion to Compel Further Exam of Abramson”). Defendant BLK Properties, LLC concurrently filed the following with each of the motions: (1) Separate Statement; (2) Proposed Order; (3) Declaration of John O. Mersereau.

On October 27, 2022, Defendant BLK Properties, LLC filed its Notice of Errata regarding the Declaration in support of its Motion to Compel Further Exam of Abramson, regarding Defendant’s failure to include a signature in the Declaration.

On November 21, 2022, Plaintiffs filed their Combined Opposition to Motions to Compel Further Medical Examination (“Opposition”), which included their Declaration of Montse Murillo.

On November 29, 2022, Defendant BLK Properties, LLC filed its Replies to each of the motions, along with Declarations in support of the respective Replies.

ANALYSIS:

I.                    Motions to Compel Further Physical Examinations

A.        Legal Standard

“Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2032.020, subd. (a).)

“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).)

        “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.” (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).)

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (a).)

A motion for medical examination over objection requires a separate statement that sets forth the discovery request, the objection thereto, and the reasons why an examination should be compelled. (Cal. Rules of Court, rule 3.1345, subd. (a)(6).) A separate statement is not required when no response has been provided to the request for discovery. (Id. at rule 3.1345, subd. (b)(1).)

B.         Discussion

Defendant BLK Properties, LLC has filed two nearly-identical motions to obtain further physical examinations of both Plaintiffs by Defendant’s chosen expert, Dr. Jonathan Corren. Dr. Jonathan Corren, M.D. is board certified in: (1) internal medicine; and (2) allergy and immunology. (Opposition, Ex. A.)

Plaintiffs oppose any further physical examinations by Defendant’s chosen expert.

The Parties appear to have multiple points of disagreement on issues of fact and law. However, the following items are not in dispute:

(1)       On September 12, 2022, Defendant BLK Properties, LLC filed its Demands for Independent Medical Examination of Plaintiffs. (Decl. Mersereau ISO Motion to Compel Further Exam of Abramson, Ex. 9; Decl. Mersereau ISO Motion to Compel Further Exam of Stork, Ex. 11; Opposition, Exs. 1, 2.) The Demands referenced diagnostic testing, but they did not specifically state that blood tests would be taken, nor did they specifically state what would specifically be tested by the blood tests.

(2)       On October 11, 2022, Plaintiffs appeared for their examinations by Defendant’s expert, Dr. Jonathan Corren. (Motion to Compel Further Exam of Abramson, p. 6:12; Motion to Compel Further Exam of Stork, p. 6:26; Opposition, p. 4:1–2.)
 

(3)       Neither Plaintiff took a blood test during their respective examinations with Dr. Corren. (Motion to Compel Further Exam of Abramson, p. 6:12–14; Motion to Compel Further Exam of Stork, pp. 6:26–27, 7:1; Opposition, p. 4:21–28 and Decl. Murillo, ¶ 5.)

(4)       Dr. Corren noted that Plaintiffs took an antihistamine the morning of their examinations and that this may have affected the results of the testing he conducted during the examinations. (Decl. Mersereau ISO Motion to Compel Further Exam of Abramson, Ex. 15; Decl. Mersereau ISO Motion to Compel Further Exam of Stork, Ex. 17; Opposition, p. 5:1–5.)

(5)       At least two of Plaintiffs’ three causes of action include damages to Plaintiffs from mold. According to the allegations made in Plaintiffs’ First Amended Complaint, “Plaintiffs developed serious physical injuries arising from the unsafe conditions at the Subject Premises, including but not limited to, serious allergies including congestion, upper respiratory issues, sneezing, breathing difficulties, and itching and watering eyes. Plaintiffs suffered, and will continue to suffer, severe physical, mental and emotional pain and suffering because of the exposure to mold at the Subject Premises.” (First Amended Complaint, ¶ 39.)

(6)       Defendant BLK Properties, LLC included the following description of the additional testing it seeks: “The additional testing that needs to be done by Dr. Corren consists of a blood test.” (Motion to Compel Further Exam of Abramson, p. 7:1; Motion to Compel Further Exam of Stork, p. 7:17.) However, Plaintiffs still did not state what would specifically be tested by these blood tests.

(7)       Plaintiff Abramson has already had blood tests taken by her own doctor, Dr. Garcia, and Plaintiff Stork has already had blood tests taken by his doctor, Dr. Katz. (Motion to Compel Further Exam of Abramson, p. 7:10–11; Motion to Compel Further Exam of Stork, pp. 7:26–28, 8:1.)

These undisputed allegations are sufficient for the Court to resolve the issue at hand without addressing the disputed allegations.

First, the issue of Plaintiffs’ ongoing physical condition due to alleged exposure to mold is in controversy in the action. (Code Civ. Proc., § 2032.020, subd. (a); First Amended Complaint, ¶ 39.)

Second, as one physical examination by Defendant’s chosen expert has already occurred, Defendant BLK Properties, LLC needs to seek leave of Court in order to compel Plaintiffs to attend an additional examination. (Code Civ. Proc., §§ 2032.220, subd. (a), 2032.310, subd. (a).) However, as the law respects form less than substance, the Court accepts Defendant’s Motions as they are rather than requiring Motions that formally move the Court for leave to seek further examinations. (Civ. Code, § 3528.)

Third, a significant source of damages in this case (if not the primary source of damages in this case) are allegedly due to physical harms Plaintiffs suffered from exposure to mold. These alleged damages, which include issues with allergies and upper respiratory issues, are items that Plaintiffs brought into this litigation through their First Amended Complaint.

Finally, Defendants have met most – but not all – of their procedural requirements pursuant to statute. Defendant have properly submitted a separate statement. (Cal. Rules of Court, rule 3.1345, subd. (a)(6).) In addition, while Defendants have not submitted a meet and confer declaration describing a meet and confer since the initial physical examinations, they have submitted Declarations that describe how the parties met and conferred prior to the initial physical examinations. This is sufficient to meet the meet and confer requirement of Code of Civil Procedure section 2032.310, subdivision (b).

Yet Defendant fails to meet one critical procedural requirement. Despite hundreds of pages of filings, Defendant has still failed to state exactly which test(s) it seeks to run with Plaintiffs’ blood. (Code Civ. Proc., § 2032.310, subd. (b).) A “blood test” is a vague term. A doctor could run literally thousands of tests with another’s blood, the overwhelming majority of which would not be relevant to this case. Regardless of whether this was the first physical examination or the tenth, it is critically important that the Court know exactly what tests Defendant seeks to run with Plaintiffs’ blood if the Court is to allow Defendant to conduct such an examination.

Furthermore, Defendant following the appropriate procedural steps does not mean that it has shown good cause for a second physical examination. Defendant notes that Plaintiffs have declined to turn over the results of the blood tests their own experts have taken. But Defendant does not explain why it would not be sufficient for Defendant to obtain those blood tests before the Court requires Plaintiffs to undergo further blood tests.

Nonetheless, Plaintiffs must provide all of the blood tests taken to the Defendants within 14 days.

The Court DENIES Defendant BLK Properties, LLC’s Motion to Compel Further Exam of Abramson and Motion to Compel Further Exam of Stork. The Court also DENIES Defendant’s Requests for Sanctions.

II.                Conclusion

Defendant BLK Properties, LLC’s Motion to Compel Further Exam of Abramson is DENIED without prejudice. The Request for Sanctions is DENIED.

Defendant BLK Properties, LLC’s Motion to Compel Further Exam of Stork is DENIED without prejudice. The Request for Sanctions is DENIED.