Judge: Anne Hwang, Case: 21STCV25360, Date: 2023-08-10 Tentative Ruling

Case Number: 21STCV25360    Hearing Date: August 17, 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

MOTION

On July 9, 2021, Plaintiff Marquise Gaines (“Plaintiff”) filed a Complaint against Defendants Alice Chan, Lotus Property Services Inc., and Does 1-10 for negligence arising out of an incident on June 18, 2020 when a bathroom ceiling collapsed on Plaintiff’s head while Plaintiff was on premises owned, leased, or operated by the defendants. On March 6, 2023, Plaintiff filed an amendment to complaint substituting First Reliable Maintenance in for Doe 1.

Now, Defendants Lotus Property Services, Inc. and First Reliable Maintenance (“Movants”) moves to compel Plaintiff to submit to a neuropsychiatric examination, which shall be conducted by Dr. Saint Martin at his office at 8616 La Tijera Blvd., Los Angeles on August 21, 2023 at 9:00 A.M. Movants also seek sanctions against Plaintiff and his attorney of record, jointly and separately, in the amount of $1,060.00. On July 26, 2023, Defendant Alice Chan filed a notice of joinder to the instant motion. On August 4, 2023, Plaintiff filed his opposition. On August 10, 2023, Movants filed their reply.

ANALYSIS

“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.) 

Here, Movants argue that there is good cause to compel Plaintiff to submit to a neuropsychological examination because Plaintiff has claimed injuries consisting of head injury, traumatic brain injury, focus deficits, memory loss, and other related injuries. (Motion at pg. 7; Randall Decl. ¶ 3.) For this reason, Movants assert that the proposed examination is necessary to their defense because it will help determine the existence and severity of Plaintiff’s claimed neurological injuries and symptoms. (Motion at pg. 7; Randall Decl. ¶ 4.) To satisfy the meet and confer requirement, Movants’ counsel attests that he attempted to informally resolve this discovery issue but without success. (Randall Decl. ¶ 2.)

In opposition, Plaintiff first asserts that he is willing to stipulate to a single neuropsychiatric examination, and then also states that a neurologist completed the exam.[1] Plaintiff further claims that Movants failed to meet and confer in good faith prior to bringing the instant motion. (Opposition at pg. 2-3, Exh. C.) Next, Plaintiff argues that he presented a valid and timely objection to the Movants’ medical examination. (Opposition at pg. 3.)

In reply, Movants argue that, prior to bringing the instant motion, Plaintiff refused to stipulate to the proposed neuropsychiatric examination. (Reply at pg. 2.) Movants point out that Plaintiff’s sole objection was on the basis that he was not obligated to stipulate to such an examination. (Ibid.; see Opposition, Exh. B.) Movants further clarify that they are not restricted to one examination, and instead, because there is good cause, Plaintiff should be compelled to submit to the proposed neuropsychiatric examination. (Reply at pg. 4.) On the issue of Movants’ obligation to meet and confer, Movants point to email exchanges between counsel that evidence that the parties discussed this issue through July 24, 2023. (Reply at pp. 4-7; Randall Decl. ¶ 2-3.) Lastly, with regard to Plaintiff’s assertion that there is a risk Defendant Chan will seek to compel a second mental examination, Movants argue that this assertion lacks merit because the email submitted by Plaintiff shows that Defendant Chan’s counsel supports Movants’ decision to pursue the proposed neuropsychiatric examination. (Reply at pp. 7-8; Opposition, Exh. D.)

The Court finds that Movants have properly met and conferred as required under Code of Civil Procedure § 2032.310, subdivision (b). Based on the email exchanged provided by Movants’ counsel, it is clear that they had reached an impasse and could not resolve their issues. (See Reply at pg. 4-7.) As to the merits of the instant motion, the Court finds Plaintiff’s assertions of head injury, traumatic brain injury, focus deficits, memory loss, and other related injuries caused by the incident, place his mental condition at issue such that good cause exists for Movants’ requested examination of Plaintiff.  Plaintiff’s objection that he has already submitted to a physical examination is without merit because Defendants have shown good cause for a different examination. Moreover, Plaintiff’s reference to his pending motion for protective order is moot because it has been previously denied. (See August 10, 2023 Minute Order.)

In terms of sanctions, Movants seek monetary sanctions against Plaintiff and his attorney of record, jointly and severally, in the amount of $1,060 for their misuse of the discovery process. (Motion at pg. 8.) This amount consists of 4 hours expended preparing the motion at a rate of $250 per hour as well as to the filing fee. Plaintiff argues that sanctions are not warranted because he has acted with substantial justification, and instead, monetary sanctions should be levied against Movants. (Opposition at pp. 4-5.) Because Plaintiff’s objection was solely on the basis that he had submitted to a physical examination, the Court does not find that Plaintiff acted with substantial justification in limiting Movants’ ability to conduct discovery and refusing to submit to a permissible discovery method. Thus, the Court finds that Plaintiff and his counsel engaged in a misuse of the discovery process as defined under Code of Civil Procedure § 2023.010, subdivisions (d), (e), (h), and (i). Therefore, Movants’ request for monetary sanctions in the amount of $1,060 is warranted and reasonable. In light of this, Plaintiff is not entitled to his requested monetary sanctions.

CONCLUSION AND ORDER

Therefore, the Court grants Movants’ motion to compel Plaintiff to submit to the neuropsychiatric examination, which shall be conducted by Dr. Saint Martin at his office at 8616 La Tijera Blvd., Los Angeles on August 21, 2023 at 9:00 A.M., unless otherwise stipulated by the parties.

            The Court further grants Movants’ request for monetary sanctions against Plaintiff and his attorney of record, jointly and severally, in the amount of $1,060. Payment shall be tendered to Movants’ counsel within 30 days of notice of the Court’s order.

Movants shall provide notice of this ruling and file a proof of service of such.