Judge: Teresa A. Beaudet, Case: 19STCV44072, Date: 2022-10-14 Tentative Ruling

Case Number: 19STCV44072    Hearing Date: October 14, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Evan Wasserstrom (“Plaintiff”) filed this action on December 6, 2019 against Defendants RPK Development Corporation, Korda Construction Corporation, and 7275 Franklin LLC (collectively, “Defendants”). The Complaint[1] asserts causes of action for (1) breach of implied warranty of habitability, (2) negligence, and (3) breach of contract.

Plaintiff’s habitability action arises from Defendants’ alleged failure to properly maintain and manage the apartment building in which Plaintiff lives. (Compl., ¶ 1.) Plaintiff alleges that throughout his tenancy, Plaintiff’s unit and the apartment common areas had repeated high-volume water leaks which caused serious mold infestations. (Compl., ¶ 2.) Plaintiff alleges this caused illness and allergies to Plaintiff. (Compl., ¶ 2.) Plaintiff alleges that despite repeatedly informing Defendants of repairs needed, Defendants failed to timely make necessary repairs to Plaintiff’s unit resulting in an uninhabitable living condition. (Compl., ¶ 3.)

On March 16, 2022, Defendants served an Amended Demand for Independent Medical Examination (“IME”) of Plaintiff. (Partida Decl., ¶ 2, Ex. 1.) The examination was noticed for April 12, 2022. (Ibid.) On March 22, 2022, Plaintiff’s counsel sent email correspondence to Defendants’ counsel indicating that Plaintiff would not agree to another medical examination. (Partida Decl., ¶ 3, Ex. 2.) Thereafter, the parties met and conferred regarding the issue. (Partida Decl., ¶ 4.)

On August 22, 2022, the parties attended an Informal Discovery Conference (“IDC”) regarding whether Plaintiff must submit to an IME. (See August 22, 2022 Minute Order.) The Court’s August 22, 2022 minute order provides, inter alia, that “[p]arties have fulfilled [their] IDC obligation regarding the subjects set forth in their IDC statements dated 08/12/22 and 08/18/22.” Defendants’ August 12, 2022 IDC Statement and Plaintiffs’ August 18, 2022 IDC Statement both concern the IME sought by Defendants.

Defendants now move for an order compelling Plaintiff to submit to an IME for allergy and pulmonology testing by Defendants’ retained immunologist/pulmonologist Jonathan Corren, M.D. Defendants also seek sanctions. Plaintiff opposes.[2]

            Discussion

“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).) Absent stipulation, mental examinations require a court order. Such order may be made only after notice and hearing, and “for good cause shown.”  (Code Civ. Proc.,        § 2032.320, subd. (a).) A showing of good cause 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. Superior Court (1987) 43 Cal.3d 833, 840.)

Defendants provide evidence that at his deposition, Plaintiff testified that he gets “short of breath often.” (Partida Decl., ¶ 6, Ex. 6 (Wasserstrom Depo.) at pp. 103:10-13.) Plaintiff also testified that his doctor did not prescribe any type of treatment or medication for Plaintiff’s shortness of breath. (Id. at p. 104:11-14.) Defendants assert that “[b]ecause plaintiff has made his injuries an issue in the case and because he attributes these injuries to mold exposure at the subject property, it is essential that moving defendants be allowed to conduct a full medical evaluation of the plaintiff concerning these issues.” (Mot. at p. 4:26-28.) Defendants seek to compel a routine oral history associated with allergy and pulmonary testing, consisting of skin prick testing, pulmonary testing, and blood testing to determine the allergic response of the Plaintiff.

In the opposition, Plaintiff indicates that he and his counsel “have repeatedly stated that Plaintiff will submit to a medical examination,” but that “[t]he only thing that Plaintiff has stated is that he will not agree to skin prick testing.” (Opp’n at p. 2:21-3:1.) Plaintiff asserts that Defendants have not met their burden to justify a skin prick test. Indeed, without citing to any supporting evidence, Defendants assert that, “[g]enerally, if inhaled, allergens are likely to be causing respiratory allergies, the skin-prick test is utilized. The skin-prick test does not cause pain or undue discomfort, nor does it endanger the patient in any way. Therefore, plaintiff should be compelled to submit to allergy skin-prick testing as part of their independent medical examinations.” (Mot. at p. 6:14.) As Plaintiff notes, although the caption page of Defendants’ motion indicates that it is “[s]erved Concurrently with Declaration of Jonathan Corren, M.D.,” no such declaration appears to have been filed with the motion. Plaintiff’s counsel also indicates in the opposition that her office did not receive service of such a declaration. (Lazar Decl., ¶ 4.)

The Court notes that Defendants filed the Declaration of Jonathan Corren, M.D. on October 4, 2022, one day after the opposition was filed. Thus, Plaintiff has not had the opportunity to respond to it. Because Plaintiff has not had the opportunity to respond to           Dr. Corren’s declaration, the Court will permit Plaintiff to file and serve a surreply.

            Conclusion

Based on the foregoing, the hearing on this motion will be continued to ___________, 2022 at 10:00 a.m. in Dept. 50. The Court will permit Plaintiff to file and serve a surreply on or before ____________, 2022, with a courtesy copy delivered to Dept. 50.  

Defendants are ordered to provide notice of this ruling.

DATED:  October 14, 2022                           ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court