Judge Anne Hwang, Case Number: 19STCV23434, Date: 2023-10-27 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On July 5, 2019, Plaintiffs Jonny Sanchez and Jessica Sernas filed a complaint against Defendants Jonathan Escobar and Does 1 to 50 for injuries resulting from a motor vehicle accident.

Defendant Jonathan Escobar (Defendant) now moves for leave to conduct a mental examination of Plaintiff Jessica Sernas (Plaintiff). Plaintiff opposes and Defendant replies.

“In any case in which a plaintiff is seeking recovery for 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.” (Code Civ. Proc., § 2032.220, subd. (a).)¿¿

“ “If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with¿Section 2032.210), or by a mental examination, the party shall obtain leave of court.) (Code Civ. Proc., section 2032.310, subd. (a).)¿

“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.” (Code Civ. Proc., section 2032.310, subd. (b).)¿

“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) 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.” (Id., § 2032.320, subds. (a), (d).)¿

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿

The Declaration of Borghi states that on August 3, 2023, Defendant sent a meet and confer request to Plaintiff. (Borghi Decl. ¶ 11, 15, Exh. D.) Based on the exhibit, it appears Defendant attempted to reasonably resolve this issue.

Defendant argues that in July 2023, Plaintiff indicated she had extensive cognitive defects due to the motor vehicle accident. (Borghi Decl. ¶ 8, 9.) Before that date, Plaintiff had only alleged physical injuries. Defendant now seeks an independent mental examination to assess these new claims.

Defendant seeks for Plaintiff to be examined by J. Vincent Filoteo, Ph.D., a neuropsychologist, to assess neurocognitive defects, emotional disorders, and brain injuries. However, Defendant does not include information in the motion or proposed order about the “time, place, manner, conditions, scope, and nature of the examination.” Under section 2032.310(b), this information is required. As discussed in Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, the party seeking leave for a mental examination must state the time, place, manner, conditions, scope, and nature of the examination fully and in detail. (Id. at 260.) This means listing each by name. There, the court discussed the heightened risk of intrusion that a mental examination could pose. (Id. at 261 [“Requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant's need for a meaningful opportunity to test the plaintiff's claims of physical or mental injury.”].) Additionally, the specificity and clarity of the order aids the examiner in complying with the parameters imposed by the court. (Id.)

Here, Defendant stated he would disclose the examination details to Plaintiff at a later date but included no details in the motion or proposed order. (Motion, 5.) He then stated that the tests are listed in the demand and that he would make Dr. Filoteo available for inquiry for the Court.[1] (Reply at p. 3.) However, it is Defendant’s burden to establish the basis for the motion. Because Defendant has not disclosed the time, place, manner, conditions, scope, and nature of the examination, the motion for leave to compel Plaintiff’s mental examination is denied. Although Defendant contends he has sent Plaintiff a list of the specifications, as discussed in Carpenter, the Court must review the parameters to protect against any undue intrusion. Additionally, these parameters must be specified in the proposed order.

Accordingly, Defendant Jonathan Escobar’s motion for leave to conduct an independent mental examination is DENIED.

[1] The Demand is not attached as an exhibit. Moreover, there is no need for a hearing where Dr. Filoteo testifies, given that Defendant could have easily simply provided the information in the motion, or at least in the reply when the opposition raised the objection. Holding a hearing when not requested by the opposing party is not an efficient use of the Court’s resources.

DEPT:	32
HEARING DATE:	October 27, 2023
CASE NUMBER:	19STCV23434
MOTIONS:	Motion to Compel Plaintiff’s Mental Examination
MOVING PARTY:	Defendant Jonathan Escobar
OPPOSING PARTY:	Plaintiff Jessica Sernas