Munoz v. Superior Court

Opinion

MOLINARI, P. J.

In this case we issued an alternative writ of mandate upon a petition seeking a writ of mandate from this court directing respondent court to set aside its order compelling petitioner to submit to a physical examination by real party in interest’s doctors without the presence of her attorney. Said order was made in an action brought by petitioner against real party for personal injuries arising out of an automobile accident.

In

Sharff

v.

Superior Court,

44 Cal.2d 508, 510 [282 P.2d 896, 64 A.L.R.2d 494], it was held that “Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril. The plaintiff, therefore, should be permitted to have the assistance and protection of an attorney during the examination. [Citation.]”

Real party argues that while petitioner should be protected from improper questions, the manner in which this protection is afforded should be left to the sound discretion of the trial court. Accordingly, he argues that in

[645]

the' present case such protection was afforded by a stipulation which real party offered to make at the time the instant motion was argued and which the trial court was willing to incorporate in its order. The proffered stipulation was that a court reporter could be present at the time of the examination and that all questions by the doctor would be subject to objections to be ruled upon by the court. The stipulation was rejected by petitioner.

In

Gonzi

v.

Superior Court,

51 Cal.2d 586, 589 [335 P.2d 97], it was held that a plaintiff in an action for damages for personal injuries was entitled to have a reporter present while she was undergoing a physical examination by a doctor employed by the defendant. However, there is no suggestion in