Judge: Teresa A. Beaudet, Case: 19STCV44072, Date: 2023-03-07 Tentative Ruling

Case Number: 19STCV44072    Hearing Date: March 7, 2023    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 him. (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 his 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]

On October 14, 2022, the Court issued an Order continuing the hearing on the instant motion to January 19, 2023, and permitting Plaintiff to file and serve a surreply on or before January 11, 2023. As set forth in the Court’s October 14, 2022 Order, Defendants filed the Declaration of Jonathan Corren, M.D. on October 4, 2022, one day after the opposition was filed. Thus, Plaintiff had not had the opportunity to respond to it. On January 11, 2023, Plaintiff filed a surreply in support of his opposition to the instant motion. On January 13, 2023, Defendants filed a “Sur Reply to Plaintiff’s Sur Reply.”

On January 19, 2023, the Court issued an Order continuing the hearing on the motion again, in light of Plaintiff’s failure to file the Declaration of Evan Wasserstrom in connection with his surreply. The Court ordered Plaintiff to file and serve the Wasserstrom Declaration referenced in the surreply by January 20, 2023, and permitted Defendants to file and serve a response to the Wasserstrom Declaration on or before January 27, 2023. On January 19, 2023, Plaintiff filed the Wasserstrom Declaration, and on January 27, 2023, Defendants filed a surreply to Plaintiff’s surreply.

            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 Plaintiff. (Defendants’ Notice of Motion at p. 2:8-10.)

In the opposition, Plaintiff indicates that 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.)

Defendants submit the Declaration of Jonathan Corren in support of the motion, who indicates that he “believe[s] allergy testing of plaintiff is necessary to determine if the plaintiff in fact demonstrates a response to mold.” (Corren Decl., ¶ 6.) Dr. Corren asserts that “[w]hile the patient has undergone skin testing previously, I feel it is important to confirm the patient’s responses.” (Corren Decl., ¶ 6.) Plaintiff asserts that there is no explanation given for why the prior testing and results are inadequate to allow Dr. Corren to formulate his opinions. In the motion, Defendants argue that they “cannot be unjustly forced to rely on the findings and/or conclusions of plaintiff’s physicians. Defendants are entitled to contest those conclusions and the only way to do that is through their own testing.” (Mot. at p. 6:19-22.)

Dr. Corren states that “[f]ollowing exposure to common environmental allergens, the allergic individual produces a special type of antibody called Immunoglobulin E or IgE,” and that “[s]pecific IgE may be detected in two ways: through a physiological test on the skin, known as a skin prick test, or through a blood test.” (Corren Decl., ¶¶ 7, 8.) Dr. Corren further states that “[i]n order to determine whether a particular allergen, such as a mold spore, is causing allergic symptoms, specialized, but standard, testing is required. Allergy skin testing and blood UNICAP testing are both highly sensitive and specific tests to assess the presence of IgE (allergic antibody) to an allergen. These tests are routinely used in clinical practice and are accepted by the scientific medical community, including the American Academy of Allergy, Asthma and Immunology (AAAAI) and the American College of Allergy, Asthma and Immunology (ACAAI), for the evaluation of allergies.” (Corren Decl., ¶ 9.) In addition, Dr. Corren states that “[i]t is imperative that the testing conditions for a skin test be mandated as well. These conditions require a subject to refrain from using antihistamines of any kind for seventy-two (72) hours prior to testing, since the test will be equivocal in the presence of antihistamines.” (Corren Decl., ¶ 12.)[3]

Plaintiff counters that the test Defendants propose, and the requirement that Plaintiff forgo medication for three days, is painful, protracted, and intrusive. Plaintiff notes that pursuant to Code of Civil Procedure section 2032.220, subdivision (a), “[i]n 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.” (Emphasis added.) Plaintiff asserts that a test that requires foregoing medication for three days is, on its face, “protracted.” Plaintiff also asserts that the proposed skin prick test is unreasonably painful and intrusive.

Plaintiff’s January 11, 2023 Declaration (filed on January 19, 2023) indicates that “[i]n Dr. Corren’s declaration filed in support of Defendant’s motion to compel additional skin prick testing, it is stated that I would need to refrain from taking antihistamines for three days in order for Dr. Corren to perform this test.” (Wasserstrom Decl., ¶ 1.) Plaintiff states that “[a]s a result of the exposure to mold, dust mites, and other allergens present within my unit to this day, I rely on taking antihistamines several times a week to mitigate the allergy symptoms I frequently experience. If forced to stop taking these medications, my allergy symptoms would significantly worsen. Committing to not take antihistamine medications for three days would constitute a significant hardship to me.” (Wasserstrom Decl., ¶ 2.)

Defendants counter (in their January 27, 2023 surreply) that Plaintiff fails to show that refraining from taking antihistamines for 72 hours is protracted or painful. Defendants note that Plaintiff has not described or reported any pain or excessive discomfort from refraining from taking antihistamines 72 hours prior to testing. In addition, Plaintiff does not state in his declaration that the skin prick testing is painful.

Defendants also note that Plaintiff’s declaration states that he takes allergy medication several times in a week (Wasserstrom Decl., ¶ 2.), which could mean taking such medication for two days, with five days without taking any medication. As set forth above, Dr. Corren asserts that the conditions “require a subject to refrain from using antihistamines of any kind for seventy-two (72) hours prior to testing...” (Corren Decl., ¶ 12.) Plaintiff does not state in his Declaration that he takes antihistamines every day, or that it would not be possible to take antihistamines on the four remaining days of the week (other than the three days prior to testing). In addition, Plaintiff acknowledges that he underwent prior testing by his own doctor (January 11, 2023 Surreply at p. 1:15-22), but Plaintiff does not state in his declaration that any prior skin prick testing conducted by his doctor(s) was “painful, protracted, or intrusive.” (Code Civ. Proc., § 2032.220, subd. (a)(1).)

Defendants also assert that the skin prick testing is not protracted as the tests are routinely administered without examinees taking antihistamines. As set forth above, Dr. Corren asserts that “[a]llergy skin testing and blood UNICAP testing are both highly sensitive and specific tests to assess the presence of IgE (allergic antibody) to an allergen. These tests are routinely used in clinical practice and are accepted by the scientific medical community,” and that the conditions “require a subject to refrain from using antihistamines of any kind for seventy-two (72) hours

prior to testing, since the test will be equivocal in the presence of antihistamines.” (Corren Decl., ¶¶ 9, 12.) In addition, Plaintiff also does not appear to assert that the skin prick testing itself is “protracted.” Dr. Corren states in his declaration that the allergy skin-prick testing takes approximately 30 to 40 minutes to complete. (Corren Decl., ¶ 14.)

Defendants also note in their January 13, 2023 response to Plaintiff’s sur-reply that Plaintiff testified in his April 21, 2021 deposition that he was not prescribed medications from his allergists. Specifically, Plaintiff was asked, “Did the second allergist prescribe you any medications?” to which Plaintiff responded, “[n]o, he did not.” (Partida Decl., ¶ 3, Ex. 2 (Wasserstrom Depo.) at p. 79:10-12.) Plaintiff was also asked, “[a]nd Dr. Eitches, to your knowledge, has not prescribed you any allergy medication; is that correct?” to which Plaintiff responded, “[h]e has not.” (Id. at p. 93:14-16.) Defendants also assert that certain discovery responses provided by Plaintiff do not list any medications involving histamines. (Partida Decl., ¶ 2, Ex. 1.) 

Based on a consideration of the arguments and evidence presented by the parties, the Court does not find that Plaintiff has established that the proposed testing is “painful, protracted, or intrusive.” (Code Civ. Proc., § 2032.220, subd. (a)(1).)

Lastly, Defendants assert that the Court should impose monetary sanctions against Plaintiff. Defendants cite to Code of Civil Procedure section 2032.410, which provides that “[i]f a party is required to submit to a physical or mental examination under Articles 2 (commencing with Section 2032.210) or 3 (commencing with Section 2032.310), or under Section 2016.030, but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Emphasis added.) The Court notes that Defendants do not state that Plaintiff was not previously required by the Court to submit to a physical examination and failed to do so. The Court thus does not find that sanctions are warranted here under Code of Civil Procedure section 2032.410.

            Conclusion

Based on the foregoing, Defendants’ motion is granted. The parties are ordered to meet and confer with regard to the date for the examination within the next 30 days.   

Defendants are ordered to provide notice of this ruling. 

DATED:  March 7, 2023                                ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court