Case Number: BC517502 Hearing Date: April 09, 2018 Dept: J

Re: Sandra Vaughn v. Western Merchandise Express, Inc., et al. (BC517502 C/W BC524257 and BC532666)

MOTION FOR LEAVE TO CONDUCT ADDITIONAL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF SANDRA VAUGHAN

Moving Parties: Defendants Western Merchandise Express, Inc., Juan R. Carrasco and Gregory Montgomery, Trustee of the Gregory and Sandra Montgomery Family Trust

Respondent: Plaintiff Sandra Vaughan

POS: Moving OK; Opposing OK

Case No. BC 517502: Plaintiff Sandra Vaughan (“Vaughan”) is suing for damages arising out of a 12/26/12 motor vehicle accident on State Route 71 in the City of Pomona (“subject accident”). The complaint was filed on 8/6/13. On 9/29/15, plaintiff filed an Amendment to Complaint, wherein she substituted WMX Logistics, Inc. (“WMX”) in for Doe 1.

Case No. BC 524257: Plaintiff Virginia Antonio (“Antonio”) is suing for damages arising out of the subject accident. The complaint was filed on 10/10/13. The First Amended Complaint (“FAC”) was filed on 12/20/13.

On 2/13/14, City of Pomona (“City”) filed its cross-complaint for Total Equitable Indemnity, Partial Equitable Indemnity, Declaratory Relief and Express Indemnification. On 6/13/14, Plaintiff dismissed City, without prejudice. On 3/21/16, plaintiff filed an Amendment to Complaint, wherein she substituted

WMX in for Doe 1.

Case No. BC532666: Plaintiffs Joel Groskopf, Susan Groskopf and Kaylee Bayes, by and through her Guardian Ad Litem, Heather Bayes are suing for damages arising out of the subject accident. The Complaint, filed on January 8, 2014 against Defendants Western Merchandise Express, Inc. (“WM Express”), Juan R. Carrasco (“Carrasco”) and Doe 1-50, asserts a cause of action for Negligence.

On 6/30/14, Judge Patricia Nieto ordered Case No. BC524257 consolidated with Case Nos. BC517502 [i.e., case styled Vaughan v. Western Merchandise Express, Inc.] and BC532666 [i.e., styled Groskopf, et al. v. Western Merchandise Express, et al.] and designated Case No. BC517502 as the lead case.

On 3/21/16, Antonio filed an Amendment to Complaint, wherein she substituted WMX in for Doe 1.

On 6/17/16, this matter was transferred from Department 97 (personal injury hub) to this instant courtroom.

On 6/26/17, the court elected to treat WMX’s motions for summary judgment in connection with Vaughan’s complaint and Antonio’s FAC as motions for judgment on the pleadings and granted same, with 10 days’ leave given to both plaintiffs to amend.

On 7/3/17, Antonio filed her Second Amended Complaint (“SAC”) against Defendants WM Express, City, State of California, Carrasco and DOES 1-100, asserts causes of action for:

Dangerous Condition of Public Property

Negligence

Negligence Per Se

Negligent Hiring

Negligent Entrustment

Negligent Infliction of Emotional Distress

On 7/5/17, Vaughan filed her First Amended Complaint against Defendants WM Express, Carrasco and DOES 1-50 for Negligence. On 7/10/17, Vaughan filed an Amendment to Complaint, wherein she substituted the Greg and Sandra Montgomery Family Trust (“Montgomery Trust”) in for Doe 2. On 7/21/17, Antonio filed an Amendment to Complaint, wherein she substituted the Montgomery Trust in for Doe 2.

On 10/2/17, Antonio dismissed her punitive damages allegations against WM Express and Carrasco, without prejudice.

On 10/18/17, the court denied WMX’s ex parte application for an order permitting its motions for summary judgment on (1) Vaughan’s FAC and (2) Antonio’s SAC to be heard on 12/27, 12/28 or 12/19of 2017 or, alternatively, to be heard less than 30 days from trial and/or to continue trial.

The Final Status Conference is set for 6/8/18. A jury trial is set for 6/19/18.

Defendants Western Merchandise Express, Inc. (“WME”), Juan R. Carrasco (“Carrasco”) and Gregory Montgomery, Trustee of the Gregory and Sandra Montgomery Family Trust (“defendants”) move for an order, per CCP § 2032.310, allowing their retained neuropsychologist, Carlos F. Saucedo, Ph.D. (“Saucedo”), to conduct a neuropsychological examination of Plaintiff Sandra Vaughan (“plaintiff”) on 4/24/18, beginning at 9:00 a.m. at Saucedo’s office located at 16133 Ventura Blvd., Suite 1105, Encino, CA 91436.

CALIFORNIA RULES OF COURT (“CRC”) RULE 3.1345 COMPLIANCE:

CRC Rule 3.1345(a)(6) requires a separate statement for a motion “[f]or medical examination over objection.” On 2/23/18, the court denied WME’s and Carrasco’s previous motion for leave to conduct additional independent medical examination of plaintiff in part based on the fact that, while they had provided a separate statement, it did not address “any of Plaintiff’s fifteen objections stated in Plaintiff’s Objection to Defendant’s Amended Demand for Independent Medical Examination” referenced in ¶ 6 of the proposed order. The court further noted that WME and Carrasco had failed to provide the court with plaintiff’s objection.

Defendants have not remedied the foregoing deficiency. They have provided a separate statement; however, they have again failed to identify and respond to the aforementioned fifteen objections stated in plaintiff’s “Objection to Defendant’s Amended Demand for Independent Medical Examination” (“Objection”). Defendants have again failed to provide the court with plaintiff’s Objection. The motion is again denied, in part, on this basis.

“In any case in which a plaintiff is seeking recovery or 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.” CCP § 2032.220(a). “A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.” CCP § 2032.220(b).

If a defendant wishes to obtain a further physical examination or any mental examination, the defendant must secure either a stipulation from plaintiff or obtain leave of court. CCP § 2032.310. “A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP § 2032.310(b).

“The court shall grant a motion for a physical or mental examination under Section 2032.210 only for good cause shown.” CCP § 2032.320(a). “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” CCP § 2032.320(d).

“’Good cause’ may be found where plaintiff claims additional injuries, or that his or her condition is worsening; or even simply because of a lapse of time (e.g., if it has been 3 or 4 years since the first exam and plaintiff claims continued symptoms, another physical examination before trial may be proper).” Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:1558 (emphasis omitted). “Where plaintiff’s injuries are complex, several exams may be necessary by specialists in different fields. There is no limit to the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of plaintiff.” Id. at ¶ 8:1558.5, citing Shapira v. Superior Court (Sylvestri) (1990) 224 Cal.App.3d 1249, 1255.

Defendants have not adequately identified the diagnostic tests, procedures, conditions, scope of nature of the requested examination, either in their motion or in their proposed order. The motion, then, is further denied on this basis. Saucedo attaches a three page “list of the measures and tests that will be performed during the examination” as Exhibit “H” to his declaration. (Saucedo Decl., ¶ 3c, Exhibit “H”). Exhibit “H” is comprised of 122 “measures and tests,” 32 of which are inexplicably “checked.” He subsequently attests that he “may not perform every list that is on the list attached as Exhibit ‘H.’” (Id., ¶ 3d). The order must list the tests that are to be performed—not a laundry list of tests that either “will be” or “may be” performed.

The motion, then, is denied.