Motion to compel orthopedic independent medical examination
orthopedic examination by Dr. Weinstein will not overlap with, and would not be duplicative of, the neurological examination by Dr. Nudleman because Dr. Weinstein’s examination will focus on Plaintiff’s back and feet pain issues, whereas Dr. Nudleman’s examination evaluated Plaintiff from the perspective of a neurologist for alleged head injuries, and that the scope of the examination by Dr. Weinstein is tailored to physical and orthopedic matters of Plaintiff’s back, including but not limited to Plaintiff’s active range of motion and grip strength, none of which are related to the examination by Dr. Nudleman. Defendant additionally contends that good cause is independently satisfied because an orthopedic IME is necessary to evaluate key damages issues—causation, permanency, disability, and future treatment.
Plaintiff contends that this orthopedic IME is duplicative of the first IME and that Defendant fails to show good cause for a second independent medical examination (“IME”) with an orthopedic specialist.
“Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), 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(a).)
A party shall obtain leave of court if a party desires to obtain discovery by a physical examination other than that described in Article 2, commencing with Code of Civil Procedure section 2032.210, or by a mental examination. (Code Civ. Proc., § 2032.310(a).) The court shall grant a motion for a physical or mental examination under Code of Civil Procedure section 2032.310 only for good cause shown. (Code Civ. Proc., § 2032.320(a).) Good cause requires a showing of both: (1) relevancy to the subject matter; and (2) specific facts justifying discovery (i.e., allegations showing the need for the information sought and lack of means of obtaining it elsewhere). (
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The defendant has an unqualified right to demand one physical examination in a suit for personal injuries (§ 2032.220, subd. (a)) and the choice of the examining physician generally belongs to the defendant [citation] . . . . Additional physical examinations may be obtained with
leave of court. [Citation.]” Pratt v. Union Pacific Railroad Co. (2008) 168 Cal.App.4th 165, 181.)
The Court of Appeal in Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, noted that the Legislature did not specifically limit the number of mental or physical examinations, that multiple defense examinations are permitted on a showing of good cause, and that analogous federal decisions have reached the same result, upholding multiple examinations by medical specialists in different fields pertinent to plaintiff’s injury, citing to a case involving an orthopedist and neurosurgeon. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) The Court of Appeal additionally noted that commentators “agree that multiple examinations should not be ordered routinely,” and that “the good cause requirement will check the potential harassment of plaintiffs by repetitive examinations.” (Ibid.)
Here, there is no dispute that Plaintiff is claiming multiple injuries, including injuries to Plaintiff’s back and both feet, for which he received multiple epidural injections. and that Defendant is seeking a second physical examination of Plaintiff by way of an orthopedic specialist to evaluate Plaintiff’s injuries to his spine.
On November 26, 2025, Plaintiff submitted to a defense medical examination conducted by Dr. Kenneth L. Nudleman, MD. (Declaration of Nathaniel Harding (“Harding Decl.”), ¶ 3, Ex. A.) Dr. Nudleman’s IME report for the November 26, 2025 examination of Plaintiff reflects that Dr. Nudleman elected to go forward with all of Plaintiff’s complaints, and questioning Plaintiff about the symptoms in his neck and lower back before conducting a physical examination of Plaintiff. (Harding Decl., ¶ 4, Ex. B, Dr.
Nudleman’s IME Report, at pp. 1- 2.) For this examination, Plaintiff was accompanied by a registered nurse who audiorecorded the examination. (Harding Decl., ¶ 5.) Dr. Nudleman performed a physical examination of Plaintiff’s spine, including questioning regarding his neck and back pain, as well as his foot pain. (Ibid.) Dr. Nudleman’s overall assessment of Plaintiff based on Plaintiff’s complaints and problems is, in part, that Plaintiff wear orthotics for plantar pain, that he has brief episodes of dizziness which do not limit his activities, and that Plaintiff has mild residuals of cervical sprain/strain, lumber sprain/strain, and scalp sensitivity. (Ex.
B to Harding Decl., Dr. Nudleman’s IME Report, at pp. 3-4.) Dr. Nudleman further provides that Plaintiff has reached maximum improvement, and does not require any further medical care. (Ex. B to Harding Decl., Dr. Nudleman’s IME Report, at p. 4.)
Defendant was aware of Plaintiff’s epidural steroid injections before Dr. Nudleman’s examination, as Plaintiff had produced copies of the bills and reports for these injunctions in Plaintiff’s discovery response dated April 1, 2025. (Harding Decl., ¶ 6.)
Defendant contends that the purpose of Dr. Weinstein’s examination is narrowly tailored and specific to assess Plaintiff’s physical complaints, particularly his back pain and feet pain, that are different in scope and scope from the first IME which was a neurological examination. However, the evidence, namely Dr. Nudleman’s IME report, undermines this assertion. Dr. Nudleman’s IME report expressly provides that Dr. Nudleman went forward with all of Plaintiff’s physical complaints, and the report reflects that this included Plaintiff’s neck pain, back pain, and foot pain.
Defendant’s Demand for the second IME with Dr. Weinstein refers to examination of the neck, back, and upper and lower extremities. (See Ex. C of Harding Decl.) Therefore, the second IME that Defendant seeks appears to be an examination of the same complaints and claimed injuries as that which was conducted in the first IME, thus, appears duplicative. Defendant does not identify any complaint or injury that was not already covered by the first IME with Dr. Nudleman that would be covered by a second IME with Dr.
Weinstein. As such, Defendant fails to show that an orthopedic examination by Dr. Weinstein will cover a claimed injury that was not covered by the neurological examination, or that Dr. Nudleman’s IME addressed only one category of injury.
Nor does Defendant meaningfully distinguish between the examination done by Dr. Nudleman and the examination Defendant seeks that Dr. Weinstein perform. Notably, Defendant did not attach a copy of Dr. Nudleman’s IME report as part of their moving papers and does not engage with substance of Dr. Nudleman’s report in any manner. Instead, Defendant makes general, unsupported arguments that what an orthopedic surgeon may assess is different from what a neurologist may assess and that a neurological examination is different from an orthopedic examination.
Defendant additionally asserts there is good cause for an orthopedic IME as one is necessary to evaluate key damages issues such as causation, permanency, disability, and future treatment. There is no support for the proposition the IME from an orthopedic surgeon will be used for causation, and Dr. Nudleman has provided an opinion as to permanency, disability, and future treatment.
Based on the foregoing, Defendant fails to show good cause for a second IME with Dr. Weinstein.
Defendant’s motion to compel an orthopedic IME with Dr. Weinstein is DENIED.
Plaintiff to give notice. 10 6 MERCHANT CAPITAL SOURCE, LLC., A CALIFORINA LIMITED LIABILITY COMPANY vs. RAM CONSTRUCTION S, AND ENGINEERING, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY, 21-01195079
Defendant Jose Molina moves the court for an order setting aside default, and a default judgment entered 8/16/2021.
The Court record herein establishes that on 4/12/2021 Plaintiff initiated this lawsuit by filing a Complaint against Defendants Ram Construction, and Engineering, LLC; Jose Molina; and DOES 1-100. (ROA 2.)
Next, on 6/7/2021 Proofs of Service were filed herein indicating that Defendant Jose Molina was personally served with the Summons and Complaint at 100 East Macarthur Blvd., #506 Santa Ana, Ca 92707 on 5/13/2021. (ROA 9.) Additionally, the entity Defendant, Ram Construction and Engineering, LLC was served on the same date, by serving Jose Molina as the Registered Agent (ROA 11.)
Thereafter, on 7/15/2021 default was entered as to RAM CONSTRUCTION, AND ENGINEERING, LLC., a California Limited Liability ENGINEERING, LLC., a California Limited Liability Company dba RAM CONSTRUCTION AND ENGINEERING; JOSE MOLINA, an individual. (ROA 13.) Defendant Jose Molina is listed on the attachment to the default document.
Ultimately, on 8/16/2021 default judgment as to defaulted defendants was entered. (ROA 23.)
Finally, on 12/4/2025 Defendant Jose Molina filed this Motion to Vacate Default and Default Judgment pursuant to CCP §473.5 and CCP §187. (ROA 62)
Pursuant to CCP §473.5, “(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against the party in the action, the party may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against the party; or (ii) 180 days after service on the party of a written notice that the default or default judgment has been entered.”
Here, not only does the motion appear untimely, but Defendant has not overcome the presumption the proof of service establishes regarding actual notice.
First, the evidence establishes that Defendant was personally served with the Summons and Complaint on 5/13/2021. Because the return was completed by a registered process server, it creates a presumption, affecting the burden of producing evidence, of the facts stated in the return. [Evid. Code, § 647; Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427-1428.]
Second, Defendant’s unsupported arguments that he was not served, do not overcome that presumption. Defendant filed a declaration stating, “I have not received any summons and complaint—except in connection with this motion. Referring to the proof of service that Plaintiff filed at the court on 06/07/2021, the summons and complaint were not served on me personally. I did not try to evade service of the summons and complaint.”
Notably, Defendant does not suggest who accepted the summons and complaint at 100 East Macarthur Blvd., #506 Santa Ana, Ca 92707; nor does he explain who the described person in the POS could possibly be. Rather, his self-serving declaration is without detail or explanation.
As such, Defendant has not overcome the presumption that the process server personally served him on 5/13/2021—and thus he appears to have had actual notice of the lawsuit.
Next, CCP §187 provides, “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”
One case explains: “This provision affords trial courts “all the means necessary to carry [their jurisdiction] into effect,” and courts may adopt “any suitable process or mode of proceeding ... which may appear most conformable to the spirit of this code” if the course of proceeding is not specifically pointed out. Section 187 “relates primarily to