Judge: Steven A. Ellis, Case: 21STCV28393, Date: 2023-10-17 Tentative Ruling
Case Number: 21STCV28393 Hearing Date: October 17, 2023 Dept: 29
Tentative
Defendants’ motion is GRANTED.
On August 2, 2021, Plaintiff Martha
Veronica Mazadiego (“Plaintiff”) filed a complaint against Defendants Miracle
Method of Corpus Christi, Inc., Miracle Method. Inc., William Alan Davenport,
and Eddie Naro asserting causes of action for motor vehicle and general
negligence, arising out of a collision that occurred on August 5, 2019, in
which Plaintiff alleges that her vehicle was struck by a vehicle that was being
operated by Defendant William Davenport, during the scope of his employment. Defendants Miracle Method of Corpus Christi,
Inc., William Alan Davenport, and Eddie Naro (“Defendants”) filed an answer on
October 25, 2021. Defendant Miracle
Method, Inc. filed an answer on October 27, 2021.
On May 22, 2023, the Court granted Defendants’ motion to
compel Plaintiff to comply with a demand for a physical examination.
On September 19, 2023, Defendants filed this
motion to
compel a second medical examination of Plaintiff. Specifically, Defendants seek
to compel Plaintiff to submit to a neurological examination.
Plaintiff has filed no opposition.
Legal Standard
Code of Civil
Procedure § 2032.220(a) provides, as follows:
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.
Code of Civil
Procedure § 2031.310 provides, as follows:
(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.
(c)¿Notice of the motion shall be served on the person to be
examined and on all parties who have appeared in the action.
Code of
Civil Procedure § 2032.320(a) states: “The court shall grant a motion for a
physical or mental examination under¿Section 2032.310¿only for good cause
shown.”
Good cause generally requires a showing
both of relevancy to the subject matter and specific facts justifying
discovery: i.e., allegations showing the need for the information sought
and lack of means for obtaining it elsewhere. (Vinson v. Super. Ct.
(1987) 43 Cal.3d 833, 840; 2 Weil & Brown, Cal. Practice
Guide: Civ. Procedure Before Trial (The Rutter Group 2023) ¶ 8:1157.) “’Good cause’ may be
found where plaintiff claims additional injuries, or that his or her condition
is worsening…).” (Id., ¶ 8:1558.)
Discussion
As a preliminary matter, the Court finds that Defendants have
complied with the meet and confer requirement set forth under Code
of Civil Procedure section 2032.310, subdivision (b). Defendants’ counsel sent
an email to Plaintiff’s counsel on September 14, 2023 inquiring whether
Plaintiff will voluntarily submit to a second physical examination with
neurologist Kasra C. Maasumi, M.D. (Galang Decl. ¶ 11, Exh. D.) However,
Plaintiff’s counsel failed to respond. (Ibid.)
Turning to the merits, Defendants argues that good
cause exists to allow them to conduct a neurological examination because
Plaintiff has conceded that her injuries include memory loss, traumatic brain
injury, and trouble concentrating. (Galang Decl., ¶¶ 5-6 & Exhs. A-B.) Defendants’ first independent medical
examination (IME) was performed by an orthopedist, Dr. Eric Wan Tan, who expressed
hesitation in testifying about Plaintiff’s neurological complaints. (Id.,
¶¶ 7-8.) Plaintiff
has already been evaluated by her own neurologist. (Id., ¶ 9 & Exh. C.) Defendants argue
that they should have an opportunity to conduct their own neurological examination;
otherwise, Defendants argue, they would be deprived of a fair trial.
On these facts, the Court finds that Defendants
have shown good cause for a second physical examination of Plaintiff, this time
by a neurologist. Defendants’ motion is
GRANTED.
Conclusion
Based on
the foregoing, Defendants’ motion to
compel a second independent medical examination of Plaintiff Martha Veronica
Mazadiego is GRANTED.
Plaintiff
is ORDERED to appear at and submit to an independent physical examination by
Dr. Kasra C. Maasumi, on November 6, 2023, at 1:00 pm, at 30212 Tomas, Suite
180, Rancho Santa Margarita, California 92688.
Moving
parties are ORDERED to give notice.