Judge Sarah J. Heidel, Case Number: 23GDCV00997, Date: 2024-04-19 Tentative Ruling

Judge: Sarah J. Heidel, Case: 23GDCV00997, Date: 2024-04-19 Tentative Ruling

Case Number: 23GDCV00997 Hearing Date: April 19, 2024 Dept: V

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
DEPARTMENT V KLARIS AVANESSIAN, Plaintiff,
vs. ASIF MAHMOOD, et al., Defendants.

Case No.: 23GDCV00997
Hearing Date: April 19, 2024 Time: 8:30 a.m.

[TENTATIVE] ORDER RE: DEFENDANTS ASIF MAHMOOD AND WAASIF MAHMOOD’S MOTION TO COMPEL A PHYSICAL EXAMINATION OF PLAINTIFF

MOVING PARTIES: DEFENDANTS ASIF MAHMOOD AND WAASIF MAHMOOD’S

RESPONDING PARTY: PLAINTIFF KLARIS AVANESSIAN

Motion to Compel a Physical Examination of Plaintiff

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

This case arises from a motor vehicle accident on August 6, 2022. Plaintiff Klaris Avanessian (“Plaintiff”) alleges that she sustained injuries to her neck back and shoulders and suffered from headaches following the accident. On December 15, 2023, Defendants filed a motion to compel a physical medical examination. On April 5, 2024, Plaintiff filed an opposition. On April 11, 2024, Defendants filed their reply.

LEGAL STANDARD

California Code of Civil Procedure section 2032.320 states: “(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.” California Code of Civil Procedure § 2032.020 authorizes the Court to order the physical examination of any party and be limited to whatever condition is “in controversy” to the action. “In controversy” means that the examination 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; Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.) Code Civ. Proc. Section 2032.310 states in pertinent part: “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” DISCUSSION A. Meet and Confer The parties engaged in a meet and confer but Plaintiff will not submit to a physical examination because she claims to not have any present complaints despite alleging $100,000 in future care treatment for various pain injections to the spine. (Rabbani Decl. ¶11; Exhibit E.) The meet and confer requirement was satisfied. B. Motion to Compel Physical Examination Defendants moves for leave of Court and an order compelling Plaintiff to submit to a physical examination. (Not. of Mot. p. 2.) Defendants argue that Plaintiff has placed her physical conditions and injuries in controversy in this action, and Defendants have a right under Code of Civil Procedure section 2032 to demand and conduct an independent medical examination on Plaintiff. (Not. of Mot. p. 2.) Defendants argue that good cause exists to compel Plaintiff to submit to a physical examination because she is claiming approximately $100,000 in future care treatment in the form of cervical epidural injections and occipital nerve block injections as well as future chiropractic care. (Id. at p.2.) Defendants also note that they will be deprived of a fair trial unless this motion is granted because Defendants’ expert must be given the opportunity to form his own independent opinion and prepare for trial. (Mot. to Compel p.8.) In opposition, Plaintiff argues that through extensive treatment she has been completely pain free with no residual symptoms since early 2023 and does not have any future appointments with any chiropractor, orthopedic surgeon, or pain management doctor. (Opp. p.2.) Plaintiff states that Defendant was provided with this information through verified responses and depositions. (Id.) Plaintiff also argues that Defendants’ demand failed to comply with California Code of Civil Procedure §2032.220 and should therefore be denied. In reply, Defendants argue that good cause exists because “it is anticipated that Plaintiff’s chiropractor and pain management provider will recommend further treatment consisting of physical therapy, pain management, and a lumbar spine discectomy.” (Reply p.3.) Further, Defendants argue that their expert cannot rely solely on Plaintiff’s medical records as she will conduct objective neurological tests on Plaintiff’s complaints of radiculopathy. (Id. at p.4.) The Court finds that Defendants’ demand failed to comply with California Code of Civil Procedure §2032.220 because it fails to identify any potential intended diagnostic testing, and relies on boilerplate language which prevents Plaintiff from determining whether the testing is appropriate, harmful, painful, and whether or not prior diagnostic testing of the same kind is available and can be provided to the examining physician. (See Levin Decl., ¶2, Exh. 1 - Defendant’s Demand for “Independent” Medical Examination of Plaintiff Klaris Avanessian.) Additionally, Plaintiff testified in a deposition “testified that she has had no complaints to her neck, low back, either shoulder or headaches for more than one year, and had no plans for any future medical treatment” a position she also stated in response to written discovery responses. (Id. at 12 5; Exh. 2.)

The court according find that Defendants have not established good cause and denies the Motion to Compel a Physical Examination of Plaintiff. C. Monetary Sanctions Defendants request for sanctions is also denied.

Based on the foregoing, the court denies the Motion to Compel a Physical Examination of Plaintiff and Defendants request for sanctions.