SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Otoniel Martinez (“Plaintiff”) filed this action against Defendants Sumitomo Rubber North America, Inc. (“Sumitomo”), EAN Holdings, LLC, and Jacob Koo (“Koo”) for damages arising from a motor vehicle incident.  

At this time, Defendants Sumitomo and Koo (“Defendants”) move for an order compelling Plaintiff to appear for a second medical examination with a neurologist. Defendants contend a neurological examination is necessary because Plaintiff claims for traumatic brain injury.    

Plaintiff opposes the motion, and Defendants filed a reply.   

 

II. Motion to Compel Examination  

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).)   

The examination will be limited to whatever condition is “in controversy” in the action.  (CCP §2032.020(a).)  This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.  (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)  Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)  Discovery responses can also frame the issues regarding the injuries and damages alleged.  Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)   

Plaintiff previously appeared for her medical examination with Defendants’ orthopedic specialist, Stephen A. Mikulak, M.D. Defendants seek a second examination of Plaintiff related to his claim for traumatic brain injury. In response to Defendants’ form interrogatory requesting Plaintiff identify and describe his injuries as a result of the accident, Plaintiff responded that he suffers from traumatic brain injury symptoms, including forgetfulness, difficulty concentrating, balance issues, blurred vision, irritability, and mood swings as to his neurologic condition. (Decl. Bossen, ¶6; Exh. A.) Defense counsel avers that they attempted to meet and confer with Plaintiff’s counsel about the second examination, but Plaintiff’s counsel did not agree to the examination.  

In opposition, Plaintiff, citing to Code Civ. Proc. § 2032.310(b), argues the motion is procedurally defective because Defendants did not specify the name of the proposed examiner, examination location, scope of testing and procedures sought, and other material details for the Court to make an enforceable order. 

In reply, Defendants provide additional information addressing the proposed examiner, examination location, and refers to exhibits filed with the reply for the scope of testing. Defendants argue that since they have now addressed the deficiencies on reply, that the motion should not be denied on procedural grounds.  

CCP § 2032.310(b) requires a motion for an examination under subdivision (a) of the same code section to 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. Although this information was not found in Defendants’ moving papers, Defendants now provide the Court with the relevant information. Plaintiff does not argue he did not have any notice of the examination, only that the moving papers’ ambiguity is insufficient for the Court to craft an enforceable order. The Court now has enough information to make its order. “[T]he proposed examination will be conducted by Dr. Jeff Victoroff, MD at 1:00 p.m. on October 30, 2023 at an examination room at Regus (California Riverside Turner Riverwalk), 11801 Pierce Street, Suite 200, Riverside California. Defendants are flexible if this date and time are not convenient for Plaintiff. The CV of Dr. Victoroff is attached to the Warshaw Declaration as Exhibit B and the scope of the examination is described in Exhibit C to the Warshaw Declaration.” (Reply, p. 2, line 28; p. 3, lines 1-4.) The Court reviewed Defendants’ Exhibit C and finds the information sufficient to permit Plaintiff to prepare for the examination. Furthermore, Plaintiff does not dispute that he has placed his neurological condition at issue, such that his claimed injuries necessitate an additional examination by a neurologist. The evidence shows that Plaintiff stipulated to appear for a late August or early September 2023 neurological examination. (Reply, Exh. A; Stipulation, p. 2, lines 6-9.) Plaintiff may not now frustrate his prior agreement on procedural grounds, especially since the defect of the instant motion has been cured. Based on the foregoing, the Court thus finds good cause for the neurological examination sought.¿¿ 

 

Accordingly, Defendants’ motion to compel Plaintiff’s neurological examination is GRANTED. Plaintiff is ordered to appear for his neurological examination with Jeff Victoroff, M.D. at Regus (California Riverside Turner Riverwalk), located at 11801 Pierce Street, Suite 200, Riverside California. If the proposed date and time of October 30, 2023 at 1:00 p.m. is not available for Plaintiff, the parties must meet and confer to determine another date and time for the examination; if Plaintiff does not meaningfully participate in the meet and confer process, Defendants may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff (extended per Code if by other than personal service).