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1 Colin M. Jones, Esq. SBN: 265628
Todd Drakeford , Esq. SBN: 317646
2 WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., 12th Floor
3 Los Angeles, California 90010
4 Tel: (213) 381-9988
Fax: (213) 381-9989
5 Email: colin@wilshirelawfirm.com; tdrakeford@wilshirelawfirm.com
Copy: evaughn@wilshirelawfirm.com
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Attorneys for Plaintiff
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DANIEL GREGORY BONILLA
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9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF PLACER
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12 DANIEL GREGORY BONILLA, an Case No.: S-CV-0048973
13 individual
PLAINTIFF DANIEL GREGORY BONILLA’S
Los Angeles, CA 90010-1137
3055 Wilshire Blvd, 12th Floor
WILSHIRE LAW FIRM, PLC
14 Plaintiff, RESPONSE TO DEFENDANTS’ SEPARATE
STATEMENT IN SUPPORT OF MOTION FOR
15 vs. FURTHER INDEPENDENT MEDICAL
PHYSICAL EXAMINATION OF PLAINTIFF
16 HARJOBAN KAUR TOOR, and individual;
17 BALJIT SINGH TOOR, an individual;
DOES 1 through 50, inclusive,
18 Defendants. Complaint Filed: 08/19/2022
Trial Date: April 2, 2024
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Plaintiff DANIEL GREGORY BONILLA (“Plaintiff”) respectfully submits his Response to
21 Defendants HARJOBAN KAUR TOOR and BALJIT SINGH TOOR’s (“Defendants”) Separate
22 Statement as follows:
23 EXAMINATION REQUESTED VIA DEMAND
24 Defendants request that Plaintiff submit to a further physical examination with Defendants’
25 expert neurosurgeon and pain management specialist, Scott C. Berta, M.D. pursuant to Code of
26 Civil Procedure §§ 2032.220, 2032.310, and 2032.320. This is due to new claims Plaintiff has made
27 since the initial examination was completed with Defendants’ expert orthopedic surgeon, Edward
28 L. Cahill, M.D. on or about September 27, 2023, and to new claims made after Plaintiff’s deposition
1
PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF
1 and initial written discovery responses, and in fact on the eve of trial with his pre-trial discovery
2 responses.
3 Defendants’ counsel initially demanded, on January 19, 2024, that Plaintiff appear for
4 physical examination on February 22, 2024, with Defendants’ expert neurosurgeon and pain
5 management specialist, Scott C. Berta, M.D., at Dr. Berta’s location in Vacaville.1 That the demand
included this location was due to an oversight with regard to Plaintiff’s residence, which is in Grass
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Valley, CA and are more than 75 miles apart. Defendants’ counsel corrected the oversight with the
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amended notice of IME, served on February 2, 2024, for the same date and time, but at Dr. Berta’s
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location in Davis, which is within 75 miles of Plaintiff’s place of residence.2
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Dr. Berta’s examination will consist of the following: history of injury and treatment;
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patient’s response to injury and treatment; current symptoms; past (or pre-incident) history; the
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complete examination should require forty-five to ninety minutes. (Berta Decl. ¶9.)
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PLAINTIFF’S RESPONSE
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Plaintiff’s counsel objected to the initial IME demand, solely on the basis that the location
Los Angeles, CA 90010-1137
3055 Wilshire Blvd, 12th Floor
WILSHIRE LAW FIRM, PLC
14 noticed was further than 75 miles from Plaintiff’s residence.3 Following service of the amended
15 demand, Plaintiff objected again, only now on the basis that a further IME may be conducted only
16 upon a finding of good cause by the Court.4 Defendant submits that Plaintiff has waived this
17 objection.
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19 REASON WHY REQUEST SHOULD NOT BE GRANTED
20 I. INTRODUCTION
21 By their improper 430+ page moving papers, it appears that Defendants have hit the “panic”
22 button. But this frenzy does not permit them to ignore procedure. Defendants have presented one
application to address three motions. Defendants have failed to present good cause for this application
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and none of these motions have merit. Defendants’ motions lack foundation and are therefore
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premature. And finally, given the amended discovery responses concurrently submitted herein,
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Defendants’ motions are superfluous.
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The Court must deny them all.
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///
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF
1 II. DEFENDANTS DEMONSTRATE NO GOOD CAUSE FOR EX PARTE RELIEF
2 California Rules of Court, Rule 3.1202(c) provides that an applicant must make an affirmative
3 factual showing of irreparable harm, immediate danger, or any other statutory basis for granting ex
4 parte relief. Defendants’ moving papers do not demonstrate the required showing for granting ex parte
5 relief on this Application. This is because the motions lack merit and there is no exigency since trial
remains months away. Moreover, to saddle the Court and Plaintiff with three motions via one
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application is prejudicial and unprofessional. While Plaintiff provides ample reasons to deny these
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inappropriate requests, Defendants’ “gang-busters” approach should not be rewarded.
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III. DEFENDANTS’ MOTION IS UNNECESSARY AND UNSUPPORTED BY
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FACTS
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Defendants’ Motion to have Plaintiff undergo a second physical examination of his left upper
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extremity) is not necessary. While Defendants are somehow claiming that Plaintiff has recently
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submitted new injuries, this is not the case. In fact, Plaintiff has amended his discovery responses to
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clear up any confusion forming the basis of Defendants’ remaining Motions. Because the amended
Los Angeles, CA 90010-1137
3055 Wilshire Blvd, 12th Floor
WILSHIRE LAW FIRM, PLC
14 responses and already established evidence prove contrary to Defendants’ allegations, there is no need
15 for the Court to order the requested relief.
16 A. THERE IS NO JUSTIFICATION FOR A SECOND EXAMINATION OF PLAINTIFF’S LEFT UPPER
17 EXTREMITY
18 A court-ordered examination is often referred to as an “independent medical exam.”
19 But this only means that it is independent of plaintiff’s case, not that the examiner is unbiased. Mercury
20 Cas. Co. v. Sup. Ct. (Garcia), 179 Cal. App. 3d 1027, 1033 (1986). Here, subjecting Plaintiff to another
21 biased practitioner examining the same body part is not warranted.
22 B. THERE ARE NO NEW INJURIES
The only reason offered in support of Defendants’ request for a second physical examination of
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Plaintiff’s left upper extremity is an allegation of “newly made claims.” But there are no “new claims”
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and there is no good cause to force Plaintiff to undergo a second, duplicative examination.
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As conceded by Defendants in their Motion, during his deposition, Plaintiff testified to his left
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arm and shoulder injuries. This has been consistently corroborated by each discovery tool presented
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and answered. Moreover, as confirmed by Defendants’ Motion, the Chronic Regional Pain Syndrome
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3
PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF
1 diagnosis resulted from Plaintiff’s continued left arm pain—a pain that has always been verified by
2 Plaintiff, both in deposition and in verified written discovery. Exhibits A, B, C to the Mayer
3 Declaration.
4 Likewise, the trial Spinal Cord Stimulator (“SCS”) was administered because of Plaintiff’s
5 continuous arm pain. Id. The fact that the SCS was placed into his cervical spine does not and cannot
equate to a “new claim.” Indeed, Exhibit C to Defendants’ Motion clearly shows that the SCS was
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placed to address “Left Upper Extremity” pain.
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Finally, Plaintiff has made it clear that he is not making any claims for neck or back pain. This
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has been conceded by Defendants as to his back (Defendants’ Memorandum at 3:26-28) and verified by
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Plaintiff via amended discovery responses. Exhibits A-G to the Declaration of Colin Jones. Because no
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new claims have been presented, Defendants fail to establish good cause for a second deposition as
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required by Cal. Code Civ. Proc. § 2025.610. And because there is no good cause, Defendants’ Motion
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must be denied.
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Defendants’ position is unsupported. As demonstrated above, Plaintiff is not making claims for
Los Angeles, CA 90010-1137
3055 Wilshire Blvd, 12th Floor
WILSHIRE LAW FIRM, PLC
14 injuries to his neck or back. Accordingly, the crux of Defendants’ Motion is defeated. Submitting to
15 more than one physical examination of Plaintiff’s same body part is unreasonably cumulative,
16 duplicative, and improper. Plaintiff is within his rights to oppose same. Cal. Code Civ. Proc. §
17 2019.030(a)(1).
18 Likewise, Defendants’ case law is unconvincing. While Defendants assert the right to a broad
19 range of discovery tools, to which Plaintiff has complied, the only case cited regarding multiple
20 medical examinations, Shapira v. Superior Court, is distinguishable from the present case. In Shapira,
21 the Court did not rule that defense showed good cause for the second examination. Shapira v. Superior
22 Court, 224 Cal. App. 3d 1249, 1256 (1990). And while “multiple examinations” were not precluded,
the Court of Appeal explained that the trial court should not have denied more than one examination to
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the defense because of number alone. Id. Moreover, in Shapira, the reason supporting defense’s
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claimed need for additional examinations was because the first examiner, the neurologist, did not find a
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causal nexus between Plaintiff’s dental procedure and her problems. Id. at 1253. Here, Dr. Cahill
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opined that Plaintiff’s injury was connected to the incident forming the basis of this lawsuit. Exhibit D
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to the Motion for a Second Physical Examination.
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4
PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF
1 Based thereon, Defendants lack merit for their request.
2 C. DEFENDANTS’ DEMAND IS PROCEDURALLY IMPROPER
3 Additionally, Defendants’ Demand fails to comply with Cal. Code Civ. Proc. § 2032.220(c).
4 Specifically, Defendants’ Demand—Exhibit M to the Motion—fails to specify “the manner, conditions,
5 scope and nature of the examination.” Cal. Code Civ. Proc. § 2032.220(c). The glaring absence is likely
because the specific “examination” being requested is duplicative of Dr. Cahill’s. This supposition is
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further confirmed by Dr. Berta’s Declaration in Support of Defendants’ Motion. It is only here, within a
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Declaration, that the “manner, conditions, scope and nature of the examination” are only slightly
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acknowledged and somewhat presented. And what becomes obvious is that ALL of the specifics have
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already been performed in Defendants’ first defense medical examination:
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CCP 2032.220(c) requirement provided by Dr. Reference to Dr. Cahill’s Examination Where
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Berta’s Declaration. Same Was Accomplished (Exhibit D).
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History of injury and treatment. 1-2
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Patient’s response to injury and treatment. 2-12
Los Angeles, CA 90010-1137
3055 Wilshire Blvd, 12th Floor
WILSHIRE LAW FIRM, PLC
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Current symptoms. 2-4, 12-17
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Past (or pre-incident) history 13-17
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17 The improper demand for cumulative investigation is harassing at best. Defendants have not
18 demonstrated good cause to force Plaintiff to attend a second session of evaluation for his same left
19 upper extremity.
20 D. ALTERNATE MEANS FOR DISCOVERY
21 While the Code does not preclude multiple examinations, good cause does not equate to
22 multiple examinations of the same body parts. Defendants offer no justification for the Court to allow
23 “another bite at the apple.” Indeed, there are alternative means for Defendants’ expert obtaining the
24 information sought, Dr. Cahill’s Report. It is undisputed that Dr. Cahill examined Plaintiff’s left upper
extremity. Exhibit D to Defendants’ Motion for this particular request confirms that Dr. Cahill
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examined, reviewed, and opined on Plaintiff’s left upper extremity. Expert designation allows for
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disclosure of those persons with expertise to participate in litigation. It does not permit each and every
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5
PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF
1 individual identified to conduct duplicative examinations in order to render opinions. Defendants have
2 no authority to support such an ask of this Court.
3 Permitting a second examination of body parts that have already been reviewed, discussed, and
4 opined cannot occur because there is no need for same. Vinson v. Sup. Ct. (Peralta Comm. College
5 Dist.), 43 Cal. 3d 833, 840 (1987); Shapira v. Superior Court, 224 Cal. App. 3d 1249, 1255 (1990).
Moreover, “good cause” serves as a barrier to excessive and unwarranted intrusions. Sporich v.
6
Superior Court, 77 Cal. App. 4th 422, 429 (2000)(superseded on other grounds). Based thereon,
7
Defendants have not demonstrated good cause. The Court is charged with protecting Plaintiff from
8
being subjected to this type of discovery abuse. It is undisputed that Dr. Cahill examined Plaintiff’s left
9
arm. Since there are no “new claims” there is no justification for allowing more of Defendants’ experts
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to conduct repetitive examinations on Plaintiff’s left upper extremity.
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DATED: February 21, 2024 WILSHIRE LAW FIRM, PLC
Los Angeles, CA 90010-1137
3055 Wilshire Blvd, 12th Floor
WILSHIRE LAW FIRM, PLC
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By:_____________________________
17 Colin M. Jones, Esq.
Todd Drakeford, Esq.
18 Attorneys for Plaintiff
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF
1
PROOF OF SERVICE
2 Daniel Gregory Bonilla v. HARJOBAN KAUR TOOR, an individual; BALJIT SINGH TOOR, an
individual; DOES 1 through 50, inclusive
3 Case No.: S-CV0048973
4 I, Ellerie M. Vaughn, am employed in the County of Los Angeles, State of California. I am over
the age of 18 years and not a party to the within action; my business address is 3055 Wilshire Blvd., 12th
5 Floor, Los Angeles, CA 90010.
6
On February 21, 2024, I served the document(s) described as
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PLAINTIFF DANIEL GREGORY BONILLA’S RESPONSE TO DEFENDANTS’
8 SEPARATE STATEMENT IN SUPPORT OF MOTION FOR FURTHER
INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF
9
on the interested party(s) in this action by placing a true copy thereof enclosed in a sealed envelope
10 addressed as follows:
11 SEE ATTACHED SERVICE LIST
12
(BY EMAIL) Based on an agreement of the parties to accept service by e-mail or electronic transmission, I
caused the above document(s) to be sent to the person(s) at the e-mail addresses listed above. I did not
13 receive, within a reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
14
(BY MAIL) I am readily familiar with this firm’s practice of collection and processing mail. Under that
15 practice it would be placed in this firm’s outgoing mail bin on that same day, with postage thereon fully
prepaid, to be deposited with the U.S. Postal Service at Los Angeles, California. I am aware that on motion
16 of the party served, service is presumed invalid if postal cancellation date or postage meter date is more
than one day after date of deposit for mailing in affidavit.
17
(BY FEDERAL EXPRESS) By placing a true and correct copy of the above document(s) in a sealed
18 envelope addressed as indicated above and causing such envelope(s) to be delivered to the FEDERAL
EXPRESS delivery service and to be delivered by the next business day to the address(s) designated.
19
(BY PERSONAL DELIVERY) I caused the document(s) listed above to be personally delivered to the
20 person(s) at the address(es) set forth above.
21 Executed on February 21, 2024, at Los Angeles, California.
22 (STATE) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
23
24 /s/Ellerie M. Vaughn
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2
PROOF OF SERVICE
1
SERVICE LIST
2 Daniel Gregory Bonilla v. HARJOBAN KAUR TOOR, an individual; BALJIT SINGH TOOR, an
individual; DOES 1 through 50, inclusive
3 Case No.: S-CV0048973
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Daniel R. Mayer, Esq. Attorneys for Defendants,
5 MCNAMARA, AMBACHER, WHEELER HARJOBAN KAUR TOOR, an individual;
HIRSIG & GRAY BALJIT SINGH TOOR
6 639 Kentucky Street
Fairfield, CA 94533
7 Tel: (707) 427-3998
Fax: (707) 427-0268
8 Daniel.Mayer@mcnamaralaw.com
liesl.swartwood@mcnamaralaw.com
9 heather.permison@mcnamaralaw.com
peter.hirsig@mcnamaralaw.com
10 lisa.rubino@mcnamaralaw.com
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PROOF OF SERVICE
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1 Colin M. Jones, Esq. SBN: 265628 Todd Drakeford , Esq. SBN: 317646 2 WILSHIRE LAW FIRM, PLC 3055 Wilshire Blvd., 12th Floor 3 Los Angeles, California 90010 4 Tel: (213) 381-9988 Fax: (213) 381-9989 5 Email: colin@wilshirelawfirm.com; tdrakeford@wilshirelawfirm.com Copy: evaughn@wilshirelawfirm.com 6 Attorneys for Plaintiff 7 DANIEL GREGORY BONILLA 8 9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF PLACER 11 12 DANIEL GREGORY BONILLA, an Case No.: S-CV-0048973 13 individual PLAINTIFF DANIEL GREGORY BONILLA’S Los Angeles, CA 90010-1137 3055 Wilshire Blvd, 12th Floor WILSHIRE LAW FIRM, PLC 14 Plaintiff, RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR 15 vs. FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 16 HARJOBAN KAUR TOOR, and individual; 17 BALJIT SINGH TOOR, an individual; DOES 1 through 50, inclusive, 18 Defendants. Complaint Filed: 08/19/2022 Trial Date: April 2, 2024 19 20 Plaintiff DANIEL GREGORY BONILLA (“Plaintiff”) respectfully submits his Response to 21 Defendants HARJOBAN KAUR TOOR and BALJIT SINGH TOOR’s (“Defendants”) Separate 22 Statement as follows: 23 EXAMINATION REQUESTED VIA DEMAND 24 Defendants request that Plaintiff submit to a further physical examination with Defendants’ 25 expert neurosurgeon and pain management specialist, Scott C. Berta, M.D. pursuant to Code of 26 Civil Procedure §§ 2032.220, 2032.310, and 2032.320. This is due to new claims Plaintiff has made 27 since the initial examination was completed with Defendants’ expert orthopedic surgeon, Edward 28 L. Cahill, M.D. on or about September 27, 2023, and to new claims made after Plaintiff’s deposition 1 PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 1 and initial written discovery responses, and in fact on the eve of trial with his pre-trial discovery 2 responses. 3 Defendants’ counsel initially demanded, on January 19, 2024, that Plaintiff appear for 4 physical examination on February 22, 2024, with Defendants’ expert neurosurgeon and pain 5 management specialist, Scott C. Berta, M.D., at Dr. Berta’s location in Vacaville.1 That the demand included this location was due to an oversight with regard to Plaintiff’s residence, which is in Grass 6 Valley, CA and are more than 75 miles apart. Defendants’ counsel corrected the oversight with the 7 amended notice of IME, served on February 2, 2024, for the same date and time, but at Dr. Berta’s 8 location in Davis, which is within 75 miles of Plaintiff’s place of residence.2 9 Dr. Berta’s examination will consist of the following: history of injury and treatment; 10 patient’s response to injury and treatment; current symptoms; past (or pre-incident) history; the 11 complete examination should require forty-five to ninety minutes. (Berta Decl. ¶9.) 12 PLAINTIFF’S RESPONSE 13 Plaintiff’s counsel objected to the initial IME demand, solely on the basis that the location Los Angeles, CA 90010-1137 3055 Wilshire Blvd, 12th Floor WILSHIRE LAW FIRM, PLC 14 noticed was further than 75 miles from Plaintiff’s residence.3 Following service of the amended 15 demand, Plaintiff objected again, only now on the basis that a further IME may be conducted only 16 upon a finding of good cause by the Court.4 Defendant submits that Plaintiff has waived this 17 objection. 18 19 REASON WHY REQUEST SHOULD NOT BE GRANTED 20 I. INTRODUCTION 21 By their improper 430+ page moving papers, it appears that Defendants have hit the “panic” 22 button. But this frenzy does not permit them to ignore procedure. Defendants have presented one application to address three motions. Defendants have failed to present good cause for this application 23 and none of these motions have merit. Defendants’ motions lack foundation and are therefore 24 premature. And finally, given the amended discovery responses concurrently submitted herein, 25 Defendants’ motions are superfluous. 26 The Court must deny them all. 27 /// 28 2 PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 1 II. DEFENDANTS DEMONSTRATE NO GOOD CAUSE FOR EX PARTE RELIEF 2 California Rules of Court, Rule 3.1202(c) provides that an applicant must make an affirmative 3 factual showing of irreparable harm, immediate danger, or any other statutory basis for granting ex 4 parte relief. Defendants’ moving papers do not demonstrate the required showing for granting ex parte 5 relief on this Application. This is because the motions lack merit and there is no exigency since trial remains months away. Moreover, to saddle the Court and Plaintiff with three motions via one 6 application is prejudicial and unprofessional. While Plaintiff provides ample reasons to deny these 7 inappropriate requests, Defendants’ “gang-busters” approach should not be rewarded. 8 III. DEFENDANTS’ MOTION IS UNNECESSARY AND UNSUPPORTED BY 9 FACTS 10 Defendants’ Motion to have Plaintiff undergo a second physical examination of his left upper 11 extremity) is not necessary. While Defendants are somehow claiming that Plaintiff has recently 12 submitted new injuries, this is not the case. In fact, Plaintiff has amended his discovery responses to 13 clear up any confusion forming the basis of Defendants’ remaining Motions. Because the amended Los Angeles, CA 90010-1137 3055 Wilshire Blvd, 12th Floor WILSHIRE LAW FIRM, PLC 14 responses and already established evidence prove contrary to Defendants’ allegations, there is no need 15 for the Court to order the requested relief. 16 A. THERE IS NO JUSTIFICATION FOR A SECOND EXAMINATION OF PLAINTIFF’S LEFT UPPER 17 EXTREMITY 18 A court-ordered examination is often referred to as an “independent medical exam.” 19 But this only means that it is independent of plaintiff’s case, not that the examiner is unbiased. Mercury 20 Cas. Co. v. Sup. Ct. (Garcia), 179 Cal. App. 3d 1027, 1033 (1986). Here, subjecting Plaintiff to another 21 biased practitioner examining the same body part is not warranted. 22 B. THERE ARE NO NEW INJURIES The only reason offered in support of Defendants’ request for a second physical examination of 23 Plaintiff’s left upper extremity is an allegation of “newly made claims.” But there are no “new claims” 24 and there is no good cause to force Plaintiff to undergo a second, duplicative examination. 25 As conceded by Defendants in their Motion, during his deposition, Plaintiff testified to his left 26 arm and shoulder injuries. This has been consistently corroborated by each discovery tool presented 27 and answered. Moreover, as confirmed by Defendants’ Motion, the Chronic Regional Pain Syndrome 28 3 PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 1 diagnosis resulted from Plaintiff’s continued left arm pain—a pain that has always been verified by 2 Plaintiff, both in deposition and in verified written discovery. Exhibits A, B, C to the Mayer 3 Declaration. 4 Likewise, the trial Spinal Cord Stimulator (“SCS”) was administered because of Plaintiff’s 5 continuous arm pain. Id. The fact that the SCS was placed into his cervical spine does not and cannot equate to a “new claim.” Indeed, Exhibit C to Defendants’ Motion clearly shows that the SCS was 6 placed to address “Left Upper Extremity” pain. 7 Finally, Plaintiff has made it clear that he is not making any claims for neck or back pain. This 8 has been conceded by Defendants as to his back (Defendants’ Memorandum at 3:26-28) and verified by 9 Plaintiff via amended discovery responses. Exhibits A-G to the Declaration of Colin Jones. Because no 10 new claims have been presented, Defendants fail to establish good cause for a second deposition as 11 required by Cal. Code Civ. Proc. § 2025.610. And because there is no good cause, Defendants’ Motion 12 must be denied. 13 Defendants’ position is unsupported. As demonstrated above, Plaintiff is not making claims for Los Angeles, CA 90010-1137 3055 Wilshire Blvd, 12th Floor WILSHIRE LAW FIRM, PLC 14 injuries to his neck or back. Accordingly, the crux of Defendants’ Motion is defeated. Submitting to 15 more than one physical examination of Plaintiff’s same body part is unreasonably cumulative, 16 duplicative, and improper. Plaintiff is within his rights to oppose same. Cal. Code Civ. Proc. § 17 2019.030(a)(1). 18 Likewise, Defendants’ case law is unconvincing. While Defendants assert the right to a broad 19 range of discovery tools, to which Plaintiff has complied, the only case cited regarding multiple 20 medical examinations, Shapira v. Superior Court, is distinguishable from the present case. In Shapira, 21 the Court did not rule that defense showed good cause for the second examination. Shapira v. Superior 22 Court, 224 Cal. App. 3d 1249, 1256 (1990). And while “multiple examinations” were not precluded, the Court of Appeal explained that the trial court should not have denied more than one examination to 23 the defense because of number alone. Id. Moreover, in Shapira, the reason supporting defense’s 24 claimed need for additional examinations was because the first examiner, the neurologist, did not find a 25 causal nexus between Plaintiff’s dental procedure and her problems. Id. at 1253. Here, Dr. Cahill 26 opined that Plaintiff’s injury was connected to the incident forming the basis of this lawsuit. Exhibit D 27 to the Motion for a Second Physical Examination. 28 4 PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 1 Based thereon, Defendants lack merit for their request. 2 C. DEFENDANTS’ DEMAND IS PROCEDURALLY IMPROPER 3 Additionally, Defendants’ Demand fails to comply with Cal. Code Civ. Proc. § 2032.220(c). 4 Specifically, Defendants’ Demand—Exhibit M to the Motion—fails to specify “the manner, conditions, 5 scope and nature of the examination.” Cal. Code Civ. Proc. § 2032.220(c). The glaring absence is likely because the specific “examination” being requested is duplicative of Dr. Cahill’s. This supposition is 6 further confirmed by Dr. Berta’s Declaration in Support of Defendants’ Motion. It is only here, within a 7 Declaration, that the “manner, conditions, scope and nature of the examination” are only slightly 8 acknowledged and somewhat presented. And what becomes obvious is that ALL of the specifics have 9 already been performed in Defendants’ first defense medical examination: 10 CCP 2032.220(c) requirement provided by Dr. Reference to Dr. Cahill’s Examination Where 11 Berta’s Declaration. Same Was Accomplished (Exhibit D). 12 History of injury and treatment. 1-2 13 Patient’s response to injury and treatment. 2-12 Los Angeles, CA 90010-1137 3055 Wilshire Blvd, 12th Floor WILSHIRE LAW FIRM, PLC 14 Current symptoms. 2-4, 12-17 15 Past (or pre-incident) history 13-17 16 17 The improper demand for cumulative investigation is harassing at best. Defendants have not 18 demonstrated good cause to force Plaintiff to attend a second session of evaluation for his same left 19 upper extremity. 20 D. ALTERNATE MEANS FOR DISCOVERY 21 While the Code does not preclude multiple examinations, good cause does not equate to 22 multiple examinations of the same body parts. Defendants offer no justification for the Court to allow 23 “another bite at the apple.” Indeed, there are alternative means for Defendants’ expert obtaining the 24 information sought, Dr. Cahill’s Report. It is undisputed that Dr. Cahill examined Plaintiff’s left upper extremity. Exhibit D to Defendants’ Motion for this particular request confirms that Dr. Cahill 25 examined, reviewed, and opined on Plaintiff’s left upper extremity. Expert designation allows for 26 disclosure of those persons with expertise to participate in litigation. It does not permit each and every 27 28 5 PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 1 individual identified to conduct duplicative examinations in order to render opinions. Defendants have 2 no authority to support such an ask of this Court. 3 Permitting a second examination of body parts that have already been reviewed, discussed, and 4 opined cannot occur because there is no need for same. Vinson v. Sup. Ct. (Peralta Comm. College 5 Dist.), 43 Cal. 3d 833, 840 (1987); Shapira v. Superior Court, 224 Cal. App. 3d 1249, 1255 (1990). Moreover, “good cause” serves as a barrier to excessive and unwarranted intrusions. Sporich v. 6 Superior Court, 77 Cal. App. 4th 422, 429 (2000)(superseded on other grounds). Based thereon, 7 Defendants have not demonstrated good cause. The Court is charged with protecting Plaintiff from 8 being subjected to this type of discovery abuse. It is undisputed that Dr. Cahill examined Plaintiff’s left 9 arm. Since there are no “new claims” there is no justification for allowing more of Defendants’ experts 10 to conduct repetitive examinations on Plaintiff’s left upper extremity. 11 12 13 DATED: February 21, 2024 WILSHIRE LAW FIRM, PLC Los Angeles, CA 90010-1137 3055 Wilshire Blvd, 12th Floor WILSHIRE LAW FIRM, PLC 14 15 16 By:_____________________________ 17 Colin M. Jones, Esq. Todd Drakeford, Esq. 18 Attorneys for Plaintiff 19 20 21 22 23 24 25 26 27 28 6 PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 1 PROOF OF SERVICE 2 Daniel Gregory Bonilla v. HARJOBAN KAUR TOOR, an individual; BALJIT SINGH TOOR, an individual; DOES 1 through 50, inclusive 3 Case No.: S-CV0048973 4 I, Ellerie M. Vaughn, am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action; my business address is 3055 Wilshire Blvd., 12th 5 Floor, Los Angeles, CA 90010. 6 On February 21, 2024, I served the document(s) described as 7 PLAINTIFF DANIEL GREGORY BONILLA’S RESPONSE TO DEFENDANTS’ 8 SEPARATE STATEMENT IN SUPPORT OF MOTION FOR FURTHER INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 9 on the interested party(s) in this action by placing a true copy thereof enclosed in a sealed envelope 10 addressed as follows: 11 SEE ATTACHED SERVICE LIST 12 (BY EMAIL) Based on an agreement of the parties to accept service by e-mail or electronic transmission, I caused the above document(s) to be sent to the person(s) at the e-mail addresses listed above. I did not 13 receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 14 (BY MAIL) I am readily familiar with this firm’s practice of collection and processing mail. Under that 15 practice it would be placed in this firm’s outgoing mail bin on that same day, with postage thereon fully prepaid, to be deposited with the U.S. Postal Service at Los Angeles, California. I am aware that on motion 16 of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 17 (BY FEDERAL EXPRESS) By placing a true and correct copy of the above document(s) in a sealed 18 envelope addressed as indicated above and causing such envelope(s) to be delivered to the FEDERAL EXPRESS delivery service and to be delivered by the next business day to the address(s) designated. 19 (BY PERSONAL DELIVERY) I caused the document(s) listed above to be personally delivered to the 20 person(s) at the address(es) set forth above. 21 Executed on February 21, 2024, at Los Angeles, California. 22 (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 23 24 /s/Ellerie M. Vaughn 25 26 27 28 2 PROOF OF SERVICE 1 SERVICE LIST 2 Daniel Gregory Bonilla v. HARJOBAN KAUR TOOR, an individual; BALJIT SINGH TOOR, an individual; DOES 1 through 50, inclusive 3 Case No.: S-CV0048973 4 Daniel R. Mayer, Esq. Attorneys for Defendants, 5 MCNAMARA, AMBACHER, WHEELER HARJOBAN KAUR TOOR, an individual; HIRSIG & GRAY BALJIT SINGH TOOR 6 639 Kentucky Street Fairfield, CA 94533 7 Tel: (707) 427-3998 Fax: (707) 427-0268 8 Daniel.Mayer@mcnamaralaw.com liesl.swartwood@mcnamaralaw.com 9 heather.permison@mcnamaralaw.com peter.hirsig@mcnamaralaw.com 10 lisa.rubino@mcnamaralaw.com 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PROOF OF SERVICE