Judge: Steven A. Ellis, Case: 22STCV03788, Date: 2024-05-13 Tentative Ruling

Case Number: 22STCV03788    Hearing Date: May 13, 2024    Dept: 29

Defendants’ Motion for Leave to Conduct Second Physical Examination of Plaintiff

Tentative

The motion is denied without prejudice.

Background

On January 31, 2022, Kevin Freeman (“Plaintiff”) filed a complaint against Emmanuel and Kristin Dossetti (collectively “Defendants”) and Does 1 through 50, asserting a negligence cause of action arising out of dog bite incident occurring on September 13, 2021.  Defendants filed their answer on May 30, 2023.

Plaintiff alleges injuries to his foot and his back.  (Cadena Decl., ¶ 3.)  Plaintiff has agreed to one physical examination (by a spine specialist) but does not agree to a second physical examination (by a foot specialist).  (Id., ¶¶ 4-11 & Exhs. B-G.)

On March 15, 2024, Defendants filed this motion for leave to conduct a second physical  examination of Plaintiff. Plaintiff filed an opposition on April 30, and Defendants filed a reply on May 2.

Legal Standard

“Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2032.020, subd. (a).)

In a personal injury action, the defendant may demand one physical examination of plaintiff as of right, without advance leave of the court.  (Code Civ. Proc., § 2032.220.) 

If a defendant seeks a further physical examination of plaintiff, or a mental examination, the defendant must first file a motion and “obtain leave of court.” (Id., § 2032.310, subd. (a).) Such a motion must “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.” (Id., subd. (b).) The court may grant such a motion “only for good cause shown.” (Id., § 2032.320, subd. (a).) A showing of good cause generally requires “that the party 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. Super. Ct. (1987) 43 Cal.3d 833, 840.) 

“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.”  (Code Civ. Proc., § 2032.320, subd. (d).) “The court is to describe¿in detail¿who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed.  The way to describe these ‘diagnostic tests and procedures’—fully¿and¿in detail—is to list them by name.” (Carpenter v. Super. Ct.¿(2006) 141 Cal.App.4th 249, 260.)¿¿ 

¿¿ 

The moving party¿must support the motion with a meet and confer declaration.  (Code Civ. Proc., § 2032.310, subd. (b).) A meet and confer declaration must state facts “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”¿ (Id., § 2016.040.)¿¿¿¿ 

¿¿ 

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Id., § 2032.020, subd. (a).) 

Discussion

Defendants seek leave of court to conduct a second physical examination of Plaintiff.  To obtain such relief, Defendants must submit evidence that they made a reasonable, good faith effort to resolve the issue before filing the motion.  (Code Civ. Proc., §§ 2032.310, subd. (b) & 2016.040.)¿¿¿¿ 

Defendants have not done so.  To the contrary, the evidence submitted with the moving papers shows: (1) Defendants demanded two physical examinations on December 14, 2023 (Cadena Decl., ¶ 3 & Exh. B); (2) when Plaintiff objected, Defendants sent an email on January 16, 2024, stating that Defendants would proceed with a motion unless Plaintiff agreed, and that the email “will serve as our meet and confer” (Id., ¶ 7 & Exh. E); and (3) after Plaintiff served written objections, Defendants sent a letter dated March 6, 2024, explaining their reasons for seeking a second examination and stating that unless Plaintiff would stipulate, Defendant “will proceed with a motion to compel” (Id., ¶ 10 & Exh.  G).  That’s it.  There was never a discussion, a request for a telephone call, or even an invitation for further discussion.  Instead, on the two occasions in which there was any communication at all (according to the declaration filing with the moving papers), the message was, essentially, “Stipulate or else.”  That is a demand, not a meet-and-confer discussion, or even an invitation to engage in a meet-and-confer discussion.

For this reason, the motion is denied without prejudice.

Finally, the Court notes that if any further motion practice is necessary, moving parties must adhere to the requirements of the Code, including, but not limited to, Code of Civil Procedure section 2032.310, subdivision (b). 

Conclusion

The Court DENIES without prejudice the motion for leave for a second physical examination of Plaintiff.

Moving Party is to give notice.