Judge: Anne Hwang, Case: 19STCV25342, Date: 2023-09-14 Tentative Ruling

Case Number: 19STCV25342    Hearing Date: September 20, 2023    Dept: 32

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. 

TENTATIVE RULING

BACKGROUND

            On July 19, 2019, Plaintiff Joseph William Davison (“Plaintiff”) filed this action against Defendants Luis Manuel Zarate (“Zarate”), Universal Waste Systems, Inc., and Does 1 to 50, inclusive, asserting two causes of action for (1) general negligence and (2) motor vehicle. The Complaint alleges that on or about October 6, 2017, “Defendant owned and/or operated his/her vehicle negligently and carelessly, proximately causing property damage and personal injury to Plaintiff.” (Complaint, p. 4 (Attachment to Complaint).)

            On May 11, 2020, the Court ordered this case (19STCV25342) and 19STCV34112 related within the meaning of California Rules of Court, rule 3.300(a).

            On June 25, 2020, the Court ordered the related cases consolidated, assigned them to Department 32 for all purposes, and designated this case (19STCV25342) as the lead case.

Defendants Universal Waste Systems, Inc. and Juan Manuel Zarate (Defendants) now move to compel a mental examination of Plaintiff with Dean Delis, PhD. on September 22, 2023 from 9:00 am to 5:30 pm, with a one-hour lunch break.  Defendants also request monetary sanctions. No opposition has been filed.

LEGAL STANDARD

“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).)¿ 

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“ “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. 

MEET AND CONFER

Defendants offer evidence that Plaintiff’s counsel was initially agreeable to a mental examination, but then stopped responding. (Price Decl. ¶ 5-9, Exh. B.) Therefore, Defendants have satisfied the meet and confer requirement by making a reasonable and good faith attempt.

DISCUSSION

Defendants argue that Plaintiff has put his mental condition at issue by undergoing a brain scan and neuropsychological testing for a brain injury he claims will result in a work demotion or early retirement. Defendants state they served Plaintiff with a notice to appear for an examination with Dr. Delis scheduled February 11, 2023, and that Plaintiff failed to appear. Defendants served Plaintiff with a second amended notice for another examination on May 6, 2023. Plaintiff failed to appear again. On July 24, 2023, Defendants state they served Plaintiff with a third amended notice of neurological examination for September 22, 2023. Defendants filed a supplemental brief on August 2, 2023 that included the Third Amended Notice of the Neuropsychological Exam for September 22, 2023. (Supp. Brief, Carrillo Decl., Exh. F.) The Notice includes the date, time, and location of the exam, plus a list of the tests that may be performed.

The alleged car accident took place on October 6, 2017. In support of the neuropsychological exam, Defendants offer that Plaintiff claims to have suffered a traumatic brain injury, but that medical records show he only was examined for an alleged traumatic brain injury one time on September 16, 2019 with Bruce Lasker, M.D. (Motion, Price Decl. ¶ 6, Exh. A; p. 110-14.)  Defendants state that in Plaintiff’s October 4, 2021 deposition, he testified that only Dr. Lasker had performed any cognitive testing on him. (Motion, Exh. A; p. 110-14.) Additionally, on October 28, 2022, Defendants assert that they learned Plaintiff was undergoing neuropsychological testing related to his alleged traumatic brain injury. (Motion, Price Decl. ¶ 4.) On January 11, 2023, Plaintiff’s counsel told Defendants’ counsel in a telephone call that Plaintiff was claiming a loss of future earnings related to the brain injury. (Motion, Price Decl. ¶ 6.) Therefore, the Court finds that Defendants have demonstrated good cause in ordering Plaintiff’s mental examination.

Defendants request the following in sanctions against Plaintiff and his attorney of record: $2,340.00 in attorney fees and $3,400.00 for the February 11, 2023 examination cancellation fee. Regarding the cancellation fee, in a personal injury case, a defendant is only entitled to one physical examination by right. All mental examinations must be sought by leave of court, if the parties do not agree. The emails Defendants attach show that Plaintiff never fully committed to the February 2023 exam. (Price Decl., Exh. B.) However, they do show that Plaintiff’s counsel stated he would review the notice, but never followed through with Defendants’ counsel. (Price Decl. ¶ 5-9, Exh. B.) Therefore, the Court finds that sanctions are warranted under Code of Civil Procedure section 2023.010 (i) against Plaintiff’s counsel for failing to confer in a reasonable and good faith manner. Defendants’ counsel declares they worked thirteen hours at an hourly rate of $180.00 to create $2,340.00 in fees for this motion. (Carrillo Decl. ¶ 2.) The Court finds the amount to be excessive and awards sanctions in the amount of $900 (5 hours of attorney time at $180.)

CONCLUSION AND ORDER

Therefore, Defendants’ motion to compel Plaintiff’s mental examination is GRANTED. Plaintiff is ordered to appear for examination with Dr. Dean Delis on September 22, 2023.

Plaintiff and Plaintiff’s counsel, jointly and severally, are ordered to pay $900 in sanctions to counsel for Defendants within 30 days.

Defendants to provide notice of the Court’s order and file a proof of service of such.