Judge: Stephen P. Pfahler, Case: 19STCV31981, Date: 2022-08-26 Tentative Ruling
Case Number: 19STCV31981 Hearing Date: August 26, 2022 Dept: F49
Dept. F-49
Date: 8-26-23
Case # 19STCV31981
Trial Date: 2-27-23 c/f 6-13-22 c/f 10-4-21
IME
MOVING PARTY: Defendants, The Board of Trustees of the California State University, et al.
RESPONDING PARTY: Plaintiffs, Francisco and Elizabeth Salas
RELIEF REQUESTED:
Motion for Independent Medical Examination
SUMMARY OF ACTION:
Plaintiff Francisco Salas was an employee of Defendant Bomel Construction Company, Inc. On May 22, 2019, while working on a parking lot construction project on the campus of California State University Northridge/The Board of Trustees of the California State University, Defendant Joe Fileto allegedly repeatedly struck Francisco Salas with a shovel to his head. Francisco Salas alleges Bomel Construction refused to assist him in obtaining medical care following the attack.
On September 10, 2020, Plaintiffs filed their complaint for assault, battery, negligence, intentional infliction of emotional distress, wrongful termination, retaliation, and loss of consortium. On September 26, 2019, Plaintiffs filed their first and second amended complaint.1
The action was transferred from the Personal Injury court to Department 49 on January 3, 2020.
Defendant California State University Northridge/The Board of Trustees of the California State University is the only named a defendant in the negligence cause of action, and as a co-defendant in the loss of consortium cause of action.
On August 18, 2020, the court sustained the demurrers of The Board of Trustees of the California State University with 20 days leave to amend. Notwithstanding the court order barring the addition of any new causes of action, Plaintiff added two new, separate causes of action to the third amended complaint for assault and battery, thereby separating Joe Fileto for the actual conduct and naming Bomel Construction Company, Inc. for ratification liability. Plaintiff also dropped the separate negligence claim against Bomel Construction Company, Inc.
On January 6, 2021, the court sustained the demurrer of Bomel Construction Company to the retaliation cause of action without leave to amend. Plaintiff agreed to dismiss the loss of consortium cause of action. On January 7, 2021, the court overruled the demurrer The Board of Trustees of the California State University. Defendants answered the third amended complaint on January 15, 2021.
RECOMMENDED RULING: Granted.
Defendants The Board of Trustees of the California State University and Bomel Construction Company, Inc. move to compel an additional independent orthopedic medical examination related to the claimed areas of the injury. The subject examination constitutes the second physical examination and third medical examination request following the neurological examination, and neuropsychological examination.2
The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.
Absent a stipulation, a court order is required for a mental examination. (Code Civ. Proc., § 2032.320, subd. (a).) The examination will be limited to whatever condition is “in controversy” in the action. The standard for good cause requires the moving party to produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) The examination may not include any diagnostic test or procedure that is painful, protracted, or intrusive and the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).) “This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.250, subd. (a).) Moving party demonstrates a sufficient meet and confer effort. [Declaration of Alexander Rynerson.]
Past injuries outside the subject controversy are not subject to examination. (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887.) A party may seek additional examinations on the subject areas in controversy upon a showing of good cause. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) The court finds the current physical injury claims are present and relevant to the current damages claim, even if any injuries were exacerbated by certain pre-existing conditions predating the incident. The proposed examination into Plaintiff’s physical condition is therefore proper and was indisputably put it into issue by Plaintiff.
Defendant moves for a single examination by Brian Grossman, M.D., orthopedic surgeon. Defendant expects a total examination time of two to three hours.
The motion is therefore granted. The examination is ordered to proceed.
“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2032.240, subd. (c), 2032.250, subd. (b).) Defendant makes no request for sanctions.
Moving defendant to provide notice.