SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff Vanessa Ulloa (“Plaintiff”) filed this action against Defendant William Oppenheim (“Defendant”) for damages arising from a motor vehicle incident.  

At this time, Defendant moves for an order compelling Plaintiff to appear for a physical examination with Defendant’s expert.  Any opposition was due on or before August 14, 2023. No opposition was filed.   

Defendant seeks an order to compel the physical examination of Plaintiff to be performed by orthopedic surgeon Kevin J. Triggs, M.D. (“Dr. Triggs”) at 1310 W. Stewart Drive, Suite 410, Orange, CA 92868.  Defendant asserts that a physical examination is necessary to evaluate the Plaintiff’s claimed injuries.   

 

2. Motion to Compel Defense Physical Examination of Plaintiff 

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.)   

Here, Defendant avers that because of the incident, Plaintiff claimed injuries and medical expenses, including pain and suffering. Defendant served a demand for Plaintiff’s physical examination for June 13, 2023 with Dr. Triggs. Defendant avers that Plaintiff neither responded or objected to the demand. On June 13, 2023, Plaintiff failed to appear for the exam at the time and place set; Plaintiff’s counsel did not provide notice that Plaintiff would not attend. On June 16, 2023 and June 20, 2023, defense counsel served letters to Plaintiff’s counsel regarding Plaintiff’s failure to appear, requesting that Plaintiff’s counsel contact defense counsel to reschedule the medical examination, in addition to a  request for reimbursement of the $250 no show/late cancellation fee imposed by Dr. Triggs’ office. However, defense counsel’s declaration is silent as to whether Plaintiff’s counsel responded to any of defense counsel’s attempt to meet and confer. 

CCP § 2032.320(d) requires the moving party to specify the “the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”  Defendant does not indicate the diagnostic tests and procedures, conditions, nature and scope of the examination in the moving papers. Defendant’s copy of the demand served upon Plaintiff (Mot. Decl. ¶ 5; Exh. A.) is insufficient to provide notice to Plaintiff and for Plaintiff to prepare for the examination. Therefore, the Court finds Defendant has not met his obligations in this regard.   

 

Accordingly, Defendant’s motion to compel Plaintiff’s examination is denied without prejudice.  Because the motion is denied, so too is the request for sanctions.  

 

Defendant is ordered to give notice.