Case Number: BC600188 Hearing Date: August 08, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO COMPEL PLAINTIFF’S NEUROLOGICAL EXAMINATION; MOTION GRANTED

On November 4, 2015, Plaintiffs Christian Jenkins (“Plaintiff”), a minor, by and through his Guardian Ad Litem, Shamika Jenkins (collectively, “Plaintiffs”) filed this action against Defendants Natalie Rangel and Teresa Pantoja (erroneously sued as Teresa Rangel) (collectively, “Defendants”) for injuries sustained in an August 17, 2009 automobile accident.

In responses to written discovery, Plaintiff alleges he sustained a bruised forehead and head trauma. (Declaration of Sue H. Kim, ¶ 2; Exh. A.) Plaintiff’s mother was deposed and testified that Plaintiff sustained developmental issues, including delayed walking and running, inability to put on his own shoes, and inability to dress himself, requiring his mother to button his shirt. (Kim Decl., ¶ 3.) Plaintiff’s grandmother testified that Plaintiff experienced developmental delays including the inability to use utensils, to feed himself, and to clothe himself. (Kim Decl., ¶ 4.)

Defendants move to compel Plaintiff’s neurological examination with Perry R. Lubens, M.D., who specializes in neurology. Defendants contend Plaintiff has untimely and unreasonably objected to this Demand for an IME and Plaintiff should be compelled to attend.

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code of Civ. Proc., § 2032.220, subd. (a).)

Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court. (Code of Civ. Proc., § 2032.310, subd. (a).) A mental examination shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders. (Code of Civ. Proc., § 2032.020, subd. (c)(1).) The Court shall grant the motion only for good cause shown. (Code of Civ. Proc., § 2032.310, subd. (a).)

Plaintiff argues: (1) this examination should take place in Las Vegas, where Plaintiff lives, or within 75 miles thereof; and (2) the examination should be limited to tests not duplicative of those performed by Dr. Babikian. There is currently a pending motion to compel Plaintiff’s neuropsychological examination by Dr. Babikian.

Defendants state Dr. Lubens has agreed to conduct Plaintiff’s neurological examination in Las Vegas on September 14, 2018, at 11:00 a.m. Defendants are entitled to demand one physical examination of Plaintiff and Plaintiff’s neurological injuries are at issue. The Motion to compel Plaintiff’s neurological examination with Dr. Lubens in Las Vegas on September 14, 2018 is GRANTED.

However, the Court finds Plaintiff’s objection to the original demand based on its location in Dr. Lubens’s Long Beach, California office was justified. Defendants argue their Demand was not invalid because they are entitled to demand one physical examination, which this is. It is clear that Defendants are entitled to demand one physical examination, but the statute is equally clear that the examination must be conducted at a location within 75 miles of the residence of the examinee, unless leave of the court is sought and good cause is shown. (Code of Civ. Proc., §§ 2032.220, subd. (a)(2), 2032.320, subd. (e).)

As Defendants’ original demand for examination was defective, sanctions against Plaintiff for objecting and refusing to appear in Long Beach are not warranted. The request for monetary sanctions is DENIED.

Moving party to give notice.