Judge: Michael P. Linfield, Case: 19STCV45653, Date: 2022-12-20 Tentative Ruling

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Case Number: 19STCV45653    Hearing Date: December 20, 2022    Dept: 34

SUBJECT:         Motion for Leave of Court to Conduct Independent Medical Examination of Plaintiff Douglas Stork by Dr. Roy Artal, M.D.

Moving Party:  Defendant Marine View Management, Inc.

Resp. Party:    Plaintiff Douglas Stork

Defendant’s Motion 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 November 18, 2022, Defendant Marine View Management, Inc. filed its Motion for Leave of Court to Conduct Independent Medical Examination of Plaintiff Douglas Stork by Dr. Roy Artal, M.D. (“Motion”). Defendant Marine View Management, Inc. concurrently filed: (1) Declaration of John O. Mersereau; (2) Separate Statement; (3) Proposed Order; and (4) Proof of Service.

On December 6, 2022, the Court denied: (1) Defendant BLK Properties, LLC’s 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; and (2) Defendant BLK Properties, LLC’s 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.

On December 7, 2022, Plaintiff Douglas Stork filed his Opposition to the Motion (“Opposition”).

On December 13, 2022, Defendant Marine View Management, Inc. filed its Reply in Support of the Motion (“Reply”). Defendant concurrently filed Declaration of Dr. Roy Artal, M.D.

ANALYSIS:

I.           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).)

II.        Discussion

Defendant Marine View Management, Inc. (“Defendant”) moves for leave of Court to conduct a medical examination of Plaintiff Douglas Stork (“Plaintiff”). Defendant proposes the following parameters for the examination: (1) that the examination shall be performed by Dr. Roy Artal, M.D., a licensed physician specializing in pulmonology; (2) that the examination will be a pulmonology examination, the scope of which includes “a medical history, physical examination, and diagnostic testing, including a pulmonary function test”; and (3) that the examination will take place within 75 miles of Plaintiff’s residence. (Motion, p. 2:15–19.)

Defendant argues: (1) that each Defendant is entitled to demand one physical examination of Plaintiff; and (2) that for the reasons discussed in the Motion, Defendant is entitled to a pulmonologist expert examination to evaluate Plaintiff’s alleged lung damage claims. (Motion, pp. 4:11, 4:19–20.)

Plaintiff opposes the Motion, arguing: (1) that Defendants are attempting to harass Plaintiffs with serialized medical examinations; (2) that Defendants have failed to properly specify the tests to be conducted; and (3) that Defendants did not properly meet and confer. (Opposition, pp. 2:2–3, 4:23–24, 5:24.)

Defendant replies: (1) that Defendant is seeking leave for this examination, not serving a demand for this examination; (2) that the Court may grant leave to take this additional examination because Plaintiffs’ injuries are complex and require specialists in different disciplines; (3) that Defendant did meet and confer prior to filing this Motion; and (4) that the examination to be conducted is set forth clearly in Dr. Artal’s Declaration. (Reply, pp. 2:12–22, 3:1–3, 4:1–2, 4:22.)

Among other things, Dr. Artal’s Declaration states the following:

“3. The examination of Plaintiff Douglas Stork which I will conduct is a pulmonary examination which consists of a medical history, a physical examination (which includes a visual examination of the body and mouth (with a light source), vital sign measurements, taking pulse in wrists and ankles, auscultation (use of a stethoscope), and tactile examination of chest (front and back). I will also conduct a pulmonary function test. (This is the name of the test.)

“4. The examination is not painful, protracted, or intrusive. The examination will take approximately two hours.”

(Decl. Artal, ¶¶ 3–4.)

Defendants have previously filed motions to compel examinations; however here, Defendant is seeking leave from the Court for this examination instead of claiming that it has the right to compel Plaintiff.  Defendant motion is entitled “Motion for Leave,” and Defendant has not served Plaintiff with a demand for examination. Perhaps as a result of the Court’s prior Order regarding examinations, Defendant clarified in its Reply that this Motion is for leave and implicitly walked back its maximalist argument that each Defendant is entitled to its own examination of Plaintiff. Therefore, the Court does not reach the question of whether each Defendant is entitled to its own examination of Plaintiff. Rather, the Court undertakes its standard analysis for leave of court pursuant to Code of Civil Procedure sections 2032.310, subdivisions (a) and (b), 2032.320, subdivision (a), and California Rules of Court, rule 3.1345, subdivisions (a)(6) and (b)(1).

The Court finds that Defendant has complied with the procedural requirements of the relevant statutes (i.e., providing sufficiently detail for the Court to understand the tests that would be undertaken, filing a Separate Statement, and meeting and conferring via email exchanges).

However, just like with Defendant BLK Properties, LLC’s prior motion for a further examination, Defendant Marine View Management, Inc. has not shown good cause for a second physical examination. Specifically, Defendant does not explain: (1) why it would not be sufficient for Defendant to obtain Plaintiff’s previously-taken test results (including the results Plaintiff took by its own experts); (2) why Defendant did not have its chosen expert conduct a pulmonary function examination during the first examination; and (3) why forcing Plaintiff to undergo serial examinations would not be unduly burdensome and harassing. (Brown & Weil, § 8.1522.)

The Court analogizes this request for an additional physical examination to a request for a second deposition of a party:  just because the examining attorney forgot to ask certain questions in a deposition does not mean there is good cause to take a second deposition.

        The Court DENIES the Motion.

III.     Conclusion

Defendant’s Motion is DENIED.