Lorena Maldonado vs. Khanh Q Le

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk

34-2022-00326525-CU-PO-GDS: Lorena Maldonado vs. Khanh Q Le 10/24/2024 Hearing on Motion to Compel IME in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENATIVE RULING:

Defendant Khanh Q Le dba Signet Nail Spa’s (“Defendant”) motion to compel “independent medical examination” of Plaintiff Lorena Maldonado (“Plaintiff”) and for sanctions is ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing.

Background

This personal injury action arises out of injuries Plaintiff sustained allegedly as a result of a pedicure treatment at Defendant’s Nail Spa. In pertinent part, Defendant noticed Plaintiff’s independent medical exam for August 21, 2024. (Declaration of Gigi Knudtson (“Knudtson Decl.”) ¶3, Exh. A.) On August 12, 2024, Plaintiff objected and responded to the demand. (Knudtson Decl. ¶4, Exh. B.) The Parties met and conferred regarding Plaintiff’s objection that Defendant’s medical expert would not be allowed to take a medical history of Plaintiff’s claimed injuries. (Knudtson Decl. ¶5, Exh. C.) Ultimately, Defendant cancelled the exam because Plaintiff indicated that she would not proceed with the exam if Defendant’s medical expert insisted on asking questions about her medical history beyond a 30-day period. (Knudtson Decl. ¶7, Exh. C.)

Defendant now moves to compel Plaintiff’s medical examination as noticed, including for Defendant’s medical expert to ask about her medical history related to the claimed injuries. Plaintiff opposes.

Legal Standard

Civil discovery by physical and mental examination is governed by Code of Civil Procedure sections 2032.010 through 2032.650. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258-59.) “As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” (Id. [citing Code Civ. Proc. §§ 2032.020, subd. (a), 2032.310].)

Code of Civil Procedure section 2032.220, subdivision (a) provides as follows:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00326525-CU-PO-GDS: Lorena Maldonado vs. Khanh Q Le 10/24/2024 Hearing on Motion to Compel IME in Department 53

(a) 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.

(See also Carpenter, supra, 141 Cal.App.4th at 256-257.) The demand must specify the “time, place, manner, conditions, scope, and nature of the examination.” (Id. [citing §2032.220, subd. (c)].)

Discussion

The Parties appear to disagree over the singular issue of whether Defendant’s medical expert may take a medical history as part of the independent medical examination of Plaintiff. Defendant contends that medical history related to the injuries claimed by Plaintiff is an essential part of an independent medical examination. Defendant cites to Code of Civil Procedure section 2032.610, subdivision (a)(1) in support. That provision provides, inter alia, that a party who submits to a physical or mental examination may demand “[a] copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.” Defendant argues that this indicates the legislature contemplated a medical history as part of a physical examination.

In opposition, Plaintiff contends that a physical examination is limited to the “plain meaning” of the term and does not encompass an oral examination, oral history, or medical history.

The Court notes that there are no authorities directly on point as to this issue. Although not dispositive regarding the issue, the Court will simply note that The Rutter Guide to Civil Procedure Before Trial provides the following comment:

Although there is no known authority in point, some questioning is obviously essential to the doctor's examination (e.g., “where does it hurt?”). Beyond this, the scope of permissible questioning is unclear.

Examining doctors may properly claim they need to ask about the patient’s entire medical history in order to evaluate other potential causes of the patient's present condition.

On the other hand, the statutory term “physical examination” might not permit questioning as to matters entitled to privacy protection if discovery were sought by other means (e.g., demands for production of plaintiff's “lifetime medical history”; see ¶

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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8:305).

(Weil & Brown, Cal. Civil Procedure Before Trial (Rutter Group 2024) §8:1520.2.)

Based on the Defendant’s demand for physical examination, the Court finds that Defendant’s examiner is entitled to ask questions orally to obtain a medical history that is related to the injuries specifically alleged as is necessary to determine the nature and extent of the injuries. While stated in dicta, the Court agrees with the Supreme Court’s assessment in Sharff v. Superior Court and County of San Francisco (1955) 44 Cal.2d 50, 510 that an examining physician should be “free to ask such questions as may be necessary to enable him to formulate an intelligent opinion regarding the nature and extent of plaintiff’s injuries, but he should not be allowed to make inquiries into matters not reasonably related to the legitimate scope of the examination.” (See also Golfland Entertainment Centers, Inc. v.

Superior Court (2003) 108 Cal.App.4th 739, 745 [trial court abused its discretion by prohibiting a physician “asking questions about [the plaintiff’s] medical condition, his symptoms, and his current conditions”].) The Court is also persuaded by the language contained in Code of Civil Procedure section 2032.610, subdivision (a)(1) that a “history” is an essential part of a medical examination. Moreover, while Defendant’s medical expert may have access to Plaintiff’s medical history based on medical records and Plaintiff’s responses to discovery, the physician must be allowed to conduct their own examination, not one that solely relies upon past histories recorded by Plaintiff’s own physicians.

Thus, the orally obtained history is not simply an opportunity for Defendant to obtain what is provided through written discovery, but rather, for Defendant’s medical expert to conduct their own examination as necessary to formulate an intelligent opinion regarding Plaintiff’s injuries.

The cases cited by Plaintiff are all distinguishable and do not address whether a medical history is part of a physical examination. The Court is also unpersuaded that a medical history expands the methods of civil discovery beyond those authorized by statute given the language of Code of Civil Procedure section 2032.610, subdivision (a)(1) and the need for Defendant’s examination.

Accordingly, Plaintiff’s motion to compel the medical examination of Plaintiff is GRANTED.

The Parties’ competing requests for sanctions is DENIED. Given that no authorities are directly on point, the Court finds that the Parties were not unjustified in bringing or opposing the instant motion.

Disposition

Plaintiff’s motion to compel the "independent medical examination" of Plaintiff is GRANTED. By no later than November 29, 2024, Plaintiff shall be made available for examination. The Court directs the parties to meet and confer regarding the date, time, and place of the examination.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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The Parties’ requests for sanctions is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)