*1 Nov. No. 30845. [L.A. 1978.] al., Petitioners, v. et
ERIN LEE EDMISTON COUNTY, OF LOS ANGELES COURT THE SUPERIOR Respondent; al., in Interest. Real Parties LAGOMARSINO et SHERRIE
Counsel Bowers, Gould & Howard, Daniel O. D.
Spray, Phillip Brady R. Michael Brown for Petitioners.
No for appearance Respondent. Blase, Ellison & Wellcome and H. for Sorensen Real Heily, Parties Jay Interest.
Opinion P
CLARK, J. Erin etitioners Lee and Walker Edmiston are defendants in an action for real underlying personal brought (hereinafter interest Sherrie and John Petitioners Lagomarsino plaintiffs). moved in an order (hereinafter defendants) for directing to an to submit Sherrie Lagomarsino The court the motion condition—requested granted writ of now seek Defendants videotaped. plaintiffs—the court from enforcing restraining respondent prohibition *3 to submit to examination. to the order Sherrie They condition compelling to court of mandamus seek—in the alternative—writ directing for an its to enter order their motion vacate order and granting For condition. medical examination without videotape independent to the and direct writ mandamus reasons we appearing grant petition issue.1 do on issue is in and we not reach substantive issues
No factual dispute in 1976 the merits of Plaintiffs action complaint. brought plaintiffs’ April in an for to Sherrie sustained for damages personal allegedly for relief. stated she automobile accident and other She at and as a had was medical treatment complaints continuing undergoing she to to result the accident. In March 1977 defendants’ agreed request to on the submit an medical condition only be for order examination Defendants moved compelling videotaped. submission to examination the video- imposition argued against it be condition law taping grounds by and inhibitive to their disruptive discovery.2 right to to Sherrie to submit
Defendants’ physical right require . . is not in issue. “In an action in which the . examination physical in condition ... ... is in which party controversy, . order submit to a . . action physical may party pending . . .” (a).) examination . subd. physician However, have whenever “a doctor selected recognized there conducts a defendant plaintiff, physical asked,” isit be permissible may improper questions possibility or court for have an during reporter present attorney plaintiff 44 510 v. Court Cal.2d examination. (Sharff Superior [282 v. see also Gonzi Court A.L.R.2d 494]; Superior P.2d 97].) should court to show cause mandate why order directing respondent 1We issued our order. execution of challenged not issue staying examination may order IS ORDERED that 2The “IT provides: challenged 1. That the conditions: following at time noticed defendants upon be taken [¶] be present to choose a disinterested videocamera operator allowed plaintiff examination; 2. That the nondisruptive entire [¶] examination; for defendant’s viewing prior 3. That be made available [¶] trial.” In 722], Ebel (1974) Cal.App.3d the Court of observed “the use of mechanical device Appeal any capable Court, the same in Gonzi supra, attaining objective [as Cal.2d In we had 937.) Gonzi (Id., permissible.” approved 586] to, use of a “to or later what occurred reporter testify during report, examination.”
Ebel, the use of a recorder was thus deemed to afford the the same as that use of a afforded protection reporter. Gonzi, Defendants established and Ebel argue procedures Sharff
line of cases are intended to afford plaintiff protection against inaccurate and when exam accounts improper inquiries misleading Indeed, or we stated the ining physicians report testify. Sharff *4 of an was to into areas attorney presence necessary preclude questioning “not related to the of the examination.” reasonably legitimate scope Court, 508, 44 Cal.2d In Gonzi we held the (Sharff supra, of a because there otherwise would be presence reporter necessary to, “no disinterested or later what person present report, testify occurred the examination.” during 586, 589.) Ebel—as stated—a recorder was deemed to serve
the same as a to afford a means of later reporter, on events which occurred reporting during Defendants contend that have available all facilities plaintiffs necessary of the and that to further burden protect integrity examination with its procedures by videotaping heavy equipment additional create a sideshow necessary personnel unnecessarily attraction, at which was the main atmosphere taping disrupting the effectiveness of the examination. procedures prejudicing defendants further contend is not authorized law. Finally, videotaping by has directed medical examinations be Legislature reported means of communications not “If including videotaping. by requested examined, . the . . the examination to medically person party causing made shall deliver to him a be detailed written copy out his and conclusions . . .” . examining physician setting 2032, subd. Code of Civil Procedure section (b)(1).) 17 defines as “writing” including “printing typewriting.”
Plaintiffs claim
court’s
to make the chal
authority
2032,
order derives from Code of Civil Procedure section
lenged
examina
subdivision
therein states an order for a medical
(a). Language
time,
manner, conditions,
tion “shall
and scope
specify
place,
made.”
it is to be
or
whom
persons
person
conducted,
examination is
under which an
according
Conditions
court, of the trial
discretion
thus entrusted
sound
are
plaintiffs,
case.
Edwards
instant
(See
is no
abuse
there
showing
846].)
Cal.Rptr.
deals with
(a)
clear section
subdivision
It seems patently
thereof.
examination—not
a medical
Nothing
reporting
conducting
as does subdivision
subdivision relates to
in that
contained
reporting,
cases
line of
also
on the
Plaintiffs
rely
Sharff-Gonzi-Ebel
But, as we
a medical examination.
the visual
authorizing
reporting
was deemed
cases,
of examinations
the audio
noted
those
reporting
and insure
integrity
reporting
necessary
protect
plaintiff
made
cannot be
has
No similar
been
showing
process.
her
or
integrity
attorney,
protected
presence
properly
or an
will not
the examination
presence
reporter
preserved
has been
Thus Gonzi-Ebel line. Such extension
device.
audio reporting
need.
v. Hauser
for lack of a demonstrated
denied
(Long
next
For reasons which
125].)
appear,
Cal.App.3d
a better
affords
further
argument
generally
plaintiffs’
*5
must fail.
related events
medium which
judicially
design Defendant, resulted from his alleging affirmatively plaintiff’s reenactment of to take own sought negligence, deposition plaintiff’s in and, in addition to reporting deposition alleged injury Proc., Civ. 2019), manner law (Code § provided noted (Code reenactment. We that a “written declaration” Proc., is 2004), Civ. of witnesses to “be taken § testimony Proc., and Civ. subd. (c)), transcribed” (Code § stenographically and includes and a “writing” “printing typewriting” do We held that statutes not 17). unanimously although neverthe- proscribe deposition by videotaping, they expressly recording.a conclusion; “leads to one intended less ineluctably Legislature into a recorded transcribed depositions stenographically section 17) that term is defined in Code of Civil Procedure (as ‘writing’ unless the otherwise.” at 974.) (Id., p. parties agree now,
We in were we are Bailey, similarly urged approve urged “because videotapingisareliablerecordingmethodwhichoffers (Id., record cannot at We 977.) advantages stenographic provide.” p. invitation, “the is whether the use rejected stating question presented for the has recording reporting deposition testimony (Id.; been authorized italics in We Legislature.” original.) concluded that whether “other methods reporting should now be is authorized a matter for the depositions Legislature determine.” at (Id., 978.)
We deal here with a medical examination rather than with a reporting as did all statutes are not the deposition, Bailey.' Recognizing applicable cases, in the same two the issues are nevertheless identical in presented Thus it is here the has not principle. urged Legislature expressly a medical examination precluded reporting by videotaping although authorized form of When similar writing only expressly reporting. were contentions in we could arrive but one conclusion: urged Bailey intended in the manner Legislature reported depositions only statute. Here we are specified by urged recognize advantages videotap in accord events, related are ing reporting judicially assured claimed and lack of problems disruption, “upstaging,” are we declined to reliability validity imaginary only. Bailey consider such claims and held the issue was whether such reporting had been authorized As it had not been Legislature. affirmatively authorized we declined to authorize it Bailey, judicially. Videotaping and, this case inas whether it affirmatively Bailey, should be “is matter for the to determine.” Legislature (Bailey Let writ of mandamus issue as prayed.
Bird, J., Mosk, J., Richardson, J., Manuel, J., C. concurred. TOBRINER, J.I dissent. confuses two
The distinct the (1) majority opinion provisions: statutory court, of the trial under Code of Civil Procedure discretionary power 2032, subdivision (a) section conditions the impose protective taking examination; of a medical the under (2) right subdivision a written (b) report examining physician’s confusion, and conclusions. of this consequence majority examination, arrive at the of a illogical holding videotaping condition under court’s discretion protective pursuant imposed
705 a written it does not constitute because subdivision (a), impermissible under subdivision medical the trial 2032, (a), section subdivision
The Legislature,
of a medical
conditions
taking
protective
upon
impose
conditions could be
examination,
did
which
not specify precisely
the court.”
“to
sound discretion of
that matter
leaving
imposed,
14,
905, 913
v.
16 Cal.3d
Court (1976)
(Edwards
Cal.Rptr.
[130
Superior
authorization,
of
P.2d
the lack
549
846].) Despite
explicit legislative
conditions,
of
a
of
courts have
.including
presence
variety
approved
P.2d
44
v.
Court
Cal.2d
(1955)
counsel
[282
Superior
(Sharff
of the examination
494]),
A.L.R.2d
stenographic transcription
Court
97]),
(1959)
[335
of the examination
(Ebel
In the
case the court noted that
latter
722]).
Cal.App.3d
Cal.Rptr.
since the
of
at the examination
allowing
stenographic reporter
“to
certain
will have an accurate and
make
injured plaintiff
device
record of the
the use of
mechanical
complete
proceeding,
any
(39
same
Cal.App.3d
attaining
objective
permissible.”
capable
device
mechanical
injured
Videotaping
capable
ensuring
and thus
and accurate record
complete
It
Court.
authorized within
cited
Ebel
language
moreover,
to the methods
approved by judicial
superior
previously
it
an
visual record of the
decision because
physical
provides
impartial
assert, however,
is not
necessary
majority
methods such
interests—that
protect
previously approved
plaintiff’s
counsel,
suffice.
tape recording
stenographic reporting,
presence
however, is
the issue. When
action of a trial court is
not
an
Necessity,
discretion,
writ
we do
ask
as an abuse of
challenged by extraordinary
the action below was
if
we
whether the action was
ask
“necessary”;
one which exceeds
reason.
Continental
(See,
bounds
e.g.,
Baking
The
further note that subdivision (b)
majority
of the
“a
written
the examined
on
detailed
report
party
request
out his
and conclusions.
. . .”
examining physician setting
findings
Court (1977)
That conclusion is irrele- unquestionably unquestionably vant. The trial court order did not substitute the for the written its order envisions both the report physician; clearly the examination and the of a written subsequent preparation report. in section 2032 limits Nothing plaintiff’s protection receipt written To the subdivision (a) authorizes the report. contrary, clearly court to conditions, additional and case law confirms impose protective that such conditions serve the an accurate may providing record of the itself. examining process short, is entitled to both an accurate
examination and to a written of the examiner’s conclusions; we cannot hold that the trial court acted the bounds beyond of reason in her to use a new and method of permitting superior an accurate record of the examination on the that the obtaining ground record does not for a satisfy statutory requirement written medical report.
Newman, J., concurred. of the real in interest for a was denied petition rehearing Tobriner, J., December 1978. was of the that the petition opinion should granted.