Judge: Steven A. Ellis, Case: 22STCV16354, Date: 2024-03-27 Tentative Ruling
Case Number: 22STCV16354 Hearing Date: April 2, 2024 Dept: 29
Defendant’s Motion for Leave to Conduct a Second Physical
Examination of Plaintiff
Tentative
The motion is denied.
Background
On May 17, 2022, Jacqueline Escobar
(“Plaintiff”) filed a complaint against Smart & Final LLC, Smart &
Final Stores LLC (“Defendant”), and Does 1 to 20, asserting general negligence
and premises liability causes of action arising out of slip and fall occurring
on June 8, 2020. Defendant filed its answer on May 8, 2023.
On March 7, 2024, Defendant filed this motion to compel the
second physical examination of Plaintiff. Plaintiff filed her opposition on March 19,
2024. No reply has been filed.
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).)
If a defendant seeks a further physical examination of plaintiff, the
defendant must first file a motion and “obtain leave of court.” (Code Civ.
Proc., § 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
moving party¿must support the motion with a meet and confer declaration.
(Ibid.)
The court may grant the motion “only for good cause
shown.” (Id., § 2032.320, subd. (a).) The purpose of the good cause
standard is to protect a plaintiff from “excessive and unwarranted
intrusions.” (Sporich v. Super. Ct. (2000) 77 Cal.App.4th 422, 428.) 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 … 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).)
¿¿
Discussion
Defendant
seeks an order compelling Plaintiff to sit for an independent medical examination
performed by Dr. Hillel Sperling on March 19, 2024 at 1:30 p.m.
As a threshold
matter, the Court obviously cannot order Plaintiff to attend an examination scheduled
for two weeks in the past.
As a
second threshold matter, it does not appear to the Court that there has been an
adequate meet and confer process between counsel. The parties agree that Plaintiff has already
been examined once, by Defendant’s expert Dr. Nathaneal Heckman. On page 7 of the motion, Defendant states that
Dr. Heckman is an “orthopedic surgeon knee specialist.” Defendant argues that because Plaintiff
claims injuries to more than her knee, it should be now able to require
Plaintiff to an additional examination by Dr. Hillel Sperling, who is a spine
specialist and will examine Plaintiff’s back and neck.
What is
missing, however, is any evidence regarding the scope of Dr. Heckman’s examination
of Plaintiff. Dr. Heckman may well
specialize in knees, but if he already examined Plaintiff’s back and neck, there
is no reason (or at least no reason in the record) that Defendant should be granted
leave to compel Plaintiff to undergo a second examination of her back and neck. Defendant
doesn’t tell the Court what the scope of Dr. Heckman’s examination was
(although Defendant presumably has Dr. Heckman’s report in hand by now), and
Plaintiff argues in its legal briefing about what is in Dr. Heckman’s report but
does not offer any supporting evidence (such as, for example, a copy of the
report).
On this
record, the motion is denied. The denial
is without prejudice, as it is based on at least three procedural matters, each
of which is an independent basis to deny the motion, but all three of which are
at least potentially subject to correction: (1) seeking an order requiring
Plaintiff to attend an examination on a date in the past; (2) an inadequate
meet and confer; and (3) the failure to present evidence to the Court regarding
the scope of Dr. Heckman’s examination of Plaintiff.
Conclusion
The Court
DENIES, without prejudice, Defendants’ motion for leave to require a second
physical examination of Plaintiff by Dr. Sperling.
Moving
Party is ORDERED to give notice.