ROSALINDA YBARRA VS MICHA KEYNAN ET AL

Motion to Compel Attendance at a Physical Examination

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On October 20, 2017, Plaintiff Rosalinda Ybarra (“Plaintiff”) filed a complaint against Defendants Micha Keynan and Hanna Keynan (“Defendants”) alleging negligence and premises liability for a toilet breaking when Plaintiff was using it on October 24, 2015.

On November 8, 2019, Defendants filed a motion to compel Plaintiff’s attendance at a physical examination pursuant to California Code of Civil Procedure section 2032.320.

Trial is set for February 3, 2020.

PARTY’S REQUESTS

Defendants ask the Court to compel Plaintiff to submit to a defense medical examination before a plastic surgeon Dr. Thomas Toohey because Plaintiff claims she will need scar revision surgery.

LEGAL STANDARD

California Code of Civil Procedure section 2032.220, subdivision (a) states: “In 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.”

California Code of Civil procedure section 2032.310 states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

California Code of Civil Procedure section 2032.320 states: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) 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.”

DISCUSSION

Defendants argue there is good cause to order Plaintiff to submit to an examination conducted by a plastic surgeon because claims she will need scar revision surgery. (Motion, p. 5:4-5:11; Ghaemi Decl., ¶ 7.)  Defendants have already noticed a medical examination with orthopedic specialist Douglas Freedman for December 11, 2019.  (Rosal Decl., ¶ 3.)

The Court finds there is good cause for the requested examination.  There is no argument made that Dr. Freedman’s orthopedic examination will overlap with the requested examination by a plastic surgeon who will assess the necessity or extent of scar revision surgery.  Rather, the Court finds the requested additional examination is proper because of the different purposes of the examinations conducted by Drs. Freedman and Toohey.  There is also good cause for the requested examination because of Dr. Toohey’s specific inquiry into Plaintiff’s claim for scar revision surgery.

Therefore, the motion is GRANTED.

Plaintiff is ordered to appear for a physical examination according to the following terms:

Date: December 17, 2019.

Time: 1:30 p.m.

Location: 1401 Avocado Avenue, Suite 100, Newport Beach, California 92660.

Nature: Dr. Thomas Toohey is to examine Plaintiff and evaluate her claims as they relate to Plaintiff’s potential scar revision surgery . painful, proactive, or intrusive.

Defendants are ordered to give notice of this ruling.