Judge: Anne Hwang, Case: 21STCV11791, Date: 2023-09-18 Tentative Ruling

Case Number: 21STCV11791    Hearing Date: September 18, 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 March 26, 2021, Plaintiff Debra Balsley filed a complaint for negligence and premises liability after allegedly falling into a septic tank on August 20, 2020. Defendant Joan B. Knapp, Trustee of the Joan Beverly Knapp Living Trust (Defendant) now moves for leave of court to conduct a mental examination of Plaintiff.

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).) 

DISCUSSION

Defendant argues good cause exists to conduct a mental exam of Plaintiff because according to written discovery in this matter, Plaintiff may suffer from pre-existing mental health conditions. Defendant asserts that Plaintiff claims she suffered emotional and psychological harm after the alleged incident, and Defendant would like the opportunity to investigate whether these conditions were pre-existing. Specifically, Defendant points to: (1) one Worker’s Compensation claim for stress and psychological injury sometime between September 2017 and December 2019; (2) that Plaintiff received worker’s compensation benefits for stress and psychological injuries from August 29, 2019 and August 18, 2020; (3) a psychiatric evaluation from July 9, 2020 where she reported she suffered from “crippling anxiety” since 2010 that sometimes resurfaces and that revealed she has high levels of distress, depression, hopelessness, anxiety, and sleep difficulties; (4) a psychological examination on December 21, 2020 where Plaintiff indicated she was taking Seroquel, a psychiatric medication, and that 80% of her problems were due to a homeless man who was stalking her; (5) a June 17, 2020 deposition for a worker’s compensation action where Plaintiff stated she was first diagnosed with anxiety and bipolar disorder in her early thirties; and (6) that despite this evidence, Plaintiff testified in this matter that she did not seek treatment for her anxiety prior to this incident.

First, Plaintiff’s opposition was due September 5, 2023 but was filed on September 11, 2023. Plaintiff acknowledges the tardiness and asks the Court to consider the opposition. The Court will consider the opposition; however, Defendant shall have an opportunity at the hearing to demonstrate why a stipulation pursuant to Code of Civil Procedure section 2032.320(b) should not be ordered, as offered by Plaintiff.

Defendant argues that there are exceptional circumstances to order a mental examination despite Plaintiff’s offer to stipulate because both the pre-existing anxiety and mental conditions, and the allegedly contemporaneous emotional distress from a different lawsuit involving a subsequent lawsuit, “are potentially overlapping or subsequent causes of anxiety and other psychological issues.” (Reply at pg. 4.) However, even if one generally suffers from anxiety and other mental illness, one can also separately experience emotional distress specific to a particular physical injury. Plaintiff is offering to stipulate that she will not claim such damages “over and above that usually associated with the physical injuries claimed.” (Code Civ. Proc. Section 2032.320(c)(1).)

Moreover, significantly, the stipulation also requires Plaintiff to stipulate that “no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of her claim for damages.” (Code Civ. Proc. Section 2032.320(c)(2).) Defendant has not established why, in light of such stipulation, expert testimony is necessary regarding the narrow issue of emotional distress specific to the particular alleged here, or why cross-examination of Plaintiff would be insufficient.

Accordingly, Defendant has not established there are exceptional circumstances for the court to order a mental examination if Plaintiff provides a stipulation; however, Defendant may provide additional argument at the hearing in light of Plaintiff’s tardy opposition.

CONCLUSION AND ORDER

            The Court denies Defendant’s motion to conduct mental examination.

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