SOPHIA KOKORIS VS UNIVERSITY OF SOUTHERN CALIFORNIA ET AL

Tentative Rulings

Case Number: BC584815    Hearing Date: February 21, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Sophia Kokoris (“Plaintiff”) alleges that she was injured when Defendant University of Southern California’s (“Defendant”) parking gate arm struck her causing to trip and fall. Plaintiff alleges injuries to her head, mouth, face, ankle, ribs, neck, back, legs, teeth, and more over the past years. She has had surgeries on her ankle and her nose.

Defendant now moves to compel a second physical examination of Plaintiff by Dr. Khyber Zaffarkhan on February 25, 2020 to address Plaintiff’s alleged claim of Complex Regional Pain Syndrome (“CRPS”).

Plaintiff opposes.[1]

The trial is currently scheduled for March 20, 2020.

Legal Standard

Where the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may seek discovery by physical examination of the plaintiff. (Code Civ. Proc. §§ 2032.020, 2032.220.)[2] A defendant is permitted to demand one physical examination of the plaintiff in a personal injury action, as long as the examination complies with the statutory requirements. (§ 2032.220, subd. (a).)

Should a party wish to perform a subsequent physical examination or any mental examination, a party must obtain leave of court. (§ 2032.310, subd. (a).) Section 2032.310(b) provides that the motion “shall specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination.” A meet and confer declaration must also accompany the motion. (§ 2032.310, subd. (b).) There must be a showing of “good cause” for a motion compelling an examination to be granted. (§ 2032.320, subd. (a).)

Further, an order granting either a physical or mental examination must 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.” (§ 2032.320, subd. (d).) The order for the mental examination must specify the diagnostic tests to be performed “by naming the test and procedures to be performed.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 261–262.) “Requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant's need for a meaningful opportunity to test the plaintiff's claims of physical or mental injury.” (Id. at 261.)

DISCUSSION

Defendant argues that a second physical examination is warranted because Plaintiff on January 23, 2020 designated two expert opining on CRPS and there is increased damages solely based on CRPS. Defendant argues it would be prejudicial to its defense now that Plaintiff can allege increased damages.

Plaintiff argues that Defendant has not shown good cause because Defendant already chose a doctor to examine Plaintiff knowing Plaintiff’s CRPS diagnosis.

As a preliminary matter, the Court denies Defendant’s motion for a failure to include a declaration addressing meet and confer efforts. Although Defendant’s counsel filed a declaration, this declaration does not address any efforts by the parties meeting and conferring on this issue, though the Court notes that there was an ex parte application on this issue and both parties appeared. (Nardi Decl. ¶ 6.)

The Court also denies Defendant’s motion on the merits. On October 10, 2019, Plaintiff served a mediation brief on Defendant that indicated that Plaintiff was diagnosed with CRPS. On December 23, 2019, Defendant served a demand for a physical examination of Plaintiff to be conducted by Dr. Tye J. Ouzounian, whose specialty is orthopedic surgery. On January 6, 2020, Plaintiff was examined and Dr. Ouzounian referenced the CRPS claim in his report.

Based on the foregoing, Defendant was already aware of the CRPS claim and its decision to not adequately examine on this issue for the first time does not warrant good cause that is sufficient to make a second physical examination appropriate. This claim is not newly alleged and Defendant should not have a second chance after missing its first chance.

Therefore, Defendant’s motion is DENIED.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.