Sharff v. Superior Court

GIBSON, C. J.

After a personal injury action was set for trial, the defendants made a motion for an order requiring the plaintiff to submit to an examination by defendants' doctor in the absence of her attorney. Plaintiff consented to the examination but requested that she be permitted to have her attorney present. The respondent court made an order directing that she “submit to an oral and physical examination concerning [her] alleged injuries, which said examination shall be performed in the absence of said plaintiff’s attorney . . . and that further proceedings by plaintiff in the above entitled

[510]

action be stayed until said plaintiff . . . submits to said examination.” This proceeding was brought to compel respondent court to allow the ease to go to trial without requiring plaintiff to submit to an examination under the conditions specified in the order.

Two attorneys, who represented plaintiff in the personal injury action, joined with her in requesting relief, but they have no standing on their own behalf to challenge the validity of the order, and the proceeding is dismissed as to them.

Mandamus will issue, where there is not a plain, speedy and adequate remedy in the ordinary course of law, to compel performance of an act which the law specifically enjoins or to compel the admission of a party to the use and enjoyment of a right to which he is entitled and from which he is unlawfully precluded. (Code Civ. Proc., §§ 1085, 1086.) The order in the present case is not appealable, and plaintiff does not have any plain, speedy and adequate remedy in the ordinary course of law. The writ is, therefore, available to test whether the court by its order has imposed an unlawful condition upon plaintiff’s right to proceed to trial.

It has been held that the court may order a plaintiff in a personal injury action to undergo a physical examination by the defendant’s doctor.

(Johnston

v.

Southern Pac. Co.,

150 Cal. 535 [89 P. 348, 11 Ann.Cas. 841].) The doctor should, of course, be free to ask such questions as may be necessary to enable him to formulate an intelligent opinion regarding the nature and extent of the 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