Judge: Michelle C. Kim, Case: 20STCV10438, Date: 2023-09-13 Tentative Ruling


Case Number: 20STCV10438    Hearing Date: November 30, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

JOSE MENCHACA, 

Plaintiff(s),  

vs. 

 

CALITEX, LLC, ET AL., 

 

Defendant(s). 

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      CASE NO: 20STCV10438 

 

[TENTATIVE] ORDER RE: MOTION TO COMPEL THREE INDEPENDENT EXAMINATIONS OF PLAINTIFF  

 

Dept. 31 

1:30 p.m.  

November 30, 2023 

 

I. Background 

Plaintiff Jose Menchaca (“Plaintiff”) filed this action against Defendants Calitex, LLC, Chadron Terrace, LLC, and Does 1 to 25 for damages arising from a battery, wherein Plaintiff alleges he was ascending a stairway in the common area of the apartment complex when Does 1 to 5 punched Plaintiff in the head and robbed Plaintiff before fleeing the scene. 

On March 6, 2023, Defendants Calitex, LLC and Chadron Terrace, LLC (“Defendants”) filed the instant motion to compel three independent medical examinations (“IME”) of Plaintiff with (1) neuropsychologist Dr. Philip Stenquist, Ph.D., ABCN (“Dr. Stenquist”), (2) general dentistry and orofacial pain specialist Dr. Richard Borquez, DDS (“Dr. Borquez”), and (3) Otolaryngologist with a specialty in neurotology Dr. John W. House, M.D. (“Dr. House.”)  

Plaintiff opposes the motion, and Defendants filed a reply. 

 

  1. Moving Argument 

Defendants argue Plaintiff alleges that, as a result of a criminal and physical attack, Plaintiff sustained ethe following injuries: 1) nondisplaced coronoid process fracture; (2) fractured jaw, (3) head injury, (4) blunt force trauma to the face; (5) right mandible coronoid process fracture; (6) face fracture; (7) TBI with persistent cognitive impairment; (8) post-concussive headaches, and (9) top teeth not aligning with bottom teeth when mouth is close and other injuries. (Mot. Exh. A.) Plaintiff also testified at his deposition that he has ringing in the ears, and that he was experiencing hearing loss. (Mot. Exh. B.) Defendants contend Plaintiff has placed his neuropsychological, hearing loss, and jaw (TMJ) at issue because of his alleged injuries and treatment he received at the Neurological Institute of Los Angeles for his traumatic brain injury (“TBI”) claim, treatment with SONUS Hearing Care Professional for hearing loss and ringing ears, and treatment at Ryan Spivak Integrative Plastic surgery for TMJ reconstruction surgery. 

Defendants aver they require three separate IMEs because Plaintiff’s injuries involve separate body parts involving different specialties. 

 

  1. Opposing Argument 

Plaintiff’s contentions are primarily on the components and procedural aspects of Defendant’s motion. Plaintiff argues the exam with Dr. Stenquist is not proper, because Dr. Steinquist is a neuropsychologist and lacks qualifies to conduct a “neurological examination as well as a musculoskeletal examination” and that Defendant has not described the manner, scope, condition, and nature of the examination within the meaning of CCP § 2032.220(c). Plaintiff also contends the exam with Dr. Borquez is duplicative in terms of “X-rays and such routine laboratory tests as may be deemed necessary” because Defendant has access to X-rays of Plaintiff’s body that Plaintiff underwent at St. Francis Medical Center, and that the description of the test “routine laboratory tests” is not compliant with CCP § 2032.220(c). Lastly, Plaintiff argues that Defendants failed to make good faith efforts to resolve the issues prior to bringing the motion. 

 

  1. Reply Argument 

Defendants provide further information of the neurocognitive examination on reply. Defendants also argue they made good faith efforts to communicate prior to filing its motion because of the voice messages, and that defense counsel was unable to respond to Plaintiff’s counsel’s inquiries afterwards because of holiday time-off.  

 

II. Motion to Compel Second Physical 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.) 

The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action.  The moving party must also establish good cause for the examination(s) sought.  A court order for physical or mental examination must be based on a showing of “good cause” (CCP § 2032.320(a)): (1) relevancy to the subject matter; and (2) specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere.  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  The purpose is to protect an examinee's privacy by preventing annoying “fishing expeditions” - i.e., one party may not compel another to undergo psychiatric testing “solely on the basis of speculation that something of interest may surface.”  (Id.) 

Plaintiff appears to concede that the three examinations involving separate specialties are necessary to evaluate the full scope of Plaintiff’s injury claims, and therefore the Court finds good cause for the three examinations. However, Plaintiff is correct that CCP § 2032.310 requires the motion to be accompanied by a meet and confer declaration under Section 2016.040. Defense counsel’s declaration briefly provides that on February 21, 2023 and March 1, 2023, defense counsel left voice messages to Plaintiff’s counsel to discuss the matter. (Leon Decl. ¶ 9.) However, as of the motion’s filing date, defense counsel did not receive a return call from Plaintiff’s counsel. (Ibid.) In opposition, Plaintiff’s counsel argues they investigated their voicemails and was unable to locate the purported voicemails.  

Because Plaintiff’s counsel is willing to meet and confer on this matter in order to resolve Plaintiff’s objections regarding the nature and scope of the proposed examinations, and there was no actual discussion held between the parties prior to the filing of the motion, Defendants’ motion is denied without prejudice at this time.  

The parties are ordered to meet and confer on this matter. The Court is hopeful that the parties will be able to come to an agreement and reach a stipulation, without the necessity of this Court’s intervention.  

  

Moving Defendants are ordered to give notice.   

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 29th day of November, 2023 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court