Judge: Anne Hwang, Case: 20STCV38944, Date: 2024-07-26 Tentative Ruling

Case Number: 20STCV38944    Hearing Date: July 26, 2024    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

MOTION

            On October 13, 2020, Plaintiff Adrian Hernandez, a minor (“Plaintiff”) filed a complaint alleging injuries after being struck in the face with a baseball bat on June 21, 2019.   

             Defendants County of Los Angeles, Justin Ortiz, and the Los Angeles Dodgers Foundation (“Defendants”) now move to compel Plaintiff to submit to a mental examination with Lev Gottlieb, Ph.D, a licensed neuropsychologist, on August 13, 2024. Plaintiff opposes. No reply has been filed.  

LEGAL STANDARD

“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.  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.”  (Civ. Proc., § 2032.310, subds. (a)-(b).) 

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [“the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary”].) A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  And “[a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (Id. at p. 839.)   

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.¿¿ 

“If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:

(1) The court determines that there is good cause for the travel involved.

(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”

(Code Civ. Proc. § 2032.320(e).)

MEET AND CONFER

The Declaration of Allen L. Thomas, Defendants’ counsel, states he sent a letter to Plaintiff’s counsel, asking to stipulate to the examination. (Thomas Decl. ¶ 7.) No further effort to meet and confer is described.

DISCUSSION

Plaintiff claims injuries such as mental pain, anxiety, emotional distress, Bell’s palsy of the right side of the face, chronic headaches, and depressive disorder.

Additionally, Defendants note that after the injury in this case, on August 25, 2021, Plaintiff was involved in a motor vehicle accident and was ejected from the vehicle.

Dr. Gottlieb’s office is in Santa Monica and Plaintiff lives in Palm Springs. The distance between the two is 119 miles, which is over the 75-mile limit. However, Defendants contend good cause exists to allow the examination since Plaintiff filed this action in Los Angeles County where the incident occurred and was living in the City of Los Angeles when the incident occurred. (Motion, 11.) Defendants also contend Dr. Gottlieb specializes in working with children and adolescents and can only conduct examinations in his office. They also contend they will pay the reasonable travel costs.

In opposition, Plaintiff does not argue that a mental examination is unwarranted but argues that Defendants have not shown good cause for the additional examination distance. Plaintiff argues he is suffering from injuries from the August 2021 motor vehicle accident and would have difficulty enduring the travel time. (Opp., 7.) The Court agrees that Defendants have failed to sufficiently describe why Dr. Gottlieb is necessary for the examination. For instance, Defendants provide no facts describing efforts to retain a closer neuropsychologist.

Additionally, the motion does not set forth the scope and nature of the examination with particularity. When seeking leave to conduct a mental examination, the party seeking leave must state the time, place, manner, conditions, scope, and nature of the examination fully and in detail. This means listing each by name. (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 260.) In Carpenter, 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.)¿¿¿ 

¿ 

The motion does not specifically state the diagnostic procedures that will be implemented. Instead, the declaration of Lev Gottlieb states the specific tests to be administered will be determined once records have been fully reviewed. (Gottlieb Decl. ¶ 8.) However, it is unclear what additional records are needed since Dr. Gottlieb also states he has reviewed Plaintiff’s form interrogatories and certain medical records. (See id. ¶ 3.)

Therefore, because good cause has not been shown for the examination location, and Defendants have insufficiently described the tests to be conducted, the motion is denied.

CONCLUSION AND ORDER

Accordingly, Defendants’ Motion to Order a Mental Examination of Plaintiff is DENIED.

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