Judge: Olivia Rosales, Case: 20STCV10029, Date: 2022-08-23 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail  for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 20STCV10029    Hearing Date: August 23, 2022    Dept: SEC

NACEY v. HAWAIIAN GARDENS CASINO, et al.

CASE NO.:  20STCV10029

HEARING:  8/23/22 @ 1:30 PM

JUDGE:  OLIVIA ROSALES

#ADD-ON 1

TENTATIVE RULING

Defendant Hawaiian Gardens Casino’s motion for an order compelling Plaintiff’s appearance at a second independent medical examination is GRANTED.  Plaintiff is ordered to appear at the next properly noticed IME. 

Moving Party to give NOTICE.

Defendant Hawaiian Gardens Casino moves for an order compelling plaintiff to attend a second independent medical exams, noticed for September 26, 2022, pursuant to CCP §§ 2032.310, 2032.320.

“(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:  (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.  (2) The examination is conducted at a location within 75 miles of the residence of the examinee.  (b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.”  (CCP § 2032.220.)

“(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.  (b) 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.  (CCP § 2032.310.)

“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown…. d) An order granting a physical or mental examination shall specify 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.  (e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: (1) The court determines that there is good cause for the travel involved.  (2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”  (CCP § 2032.320(a), (d), (e).)

Plaintiff underwent an Independent Medical Examination (“IME”) on November 22, 2021, before defendants' expert, Tony Feuerman, M.D. Following that examination, Dr. Feuerman prepared an IME report and concluded that plaintiff had a successful microdisctomy and can return to work. (Earley Decl., Ex. A, Page 2 of Dr. Feuerman’s November 11, 2021, IME Report.)

After the IME, Plaintiff complained to his treaters that he had 10/10 pain and experienced painful “locking up” sensation in his back for several minutes
everyday.  (Earley Decl., ¶ 3, Ex. C.)  During a May 16, 2022, he reported to his neurosurgeon that no longer had his painful locking up sensation in his low back. (Id., Ex. D.) 

Based on Plaintiff’s post-IME complaints about pain, the court finds good cause for a second IME by a pain management specialist, as noticed by Defendant.

Accordingly, the motion is GRANTED.  The parties are reminded that trial is set for September 27, 2022, and the second IME must be conducted before discovery cut-off.