Judge Anne Hwang, Case Number: 21STCV40774, Date: 2023-10-06 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 November 5, 2021, Plaintiff Walter Andrade (Plaintiff) filed a complaint against Defendants Aiden Cole Berlinger and Jason Berlinger (Defendants) and Does 1 to 100 for damages resulting from an alleged motor vehicle accident.

Defendants now move for leave to conduct a mental status examination on Plaintiff with Dr. Barry Ludwig on February 28, 2024 at 9:00 a.m. Plaintiff opposes and Defendants reply.

“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.¿¿

The Declaration of David Mendoza states that he emailed Plaintiff’s counsel about scheduling the instant examination and discussing Plaintiff’s objections. (Mendoza Decl. ¶ 8, Exh. C.) Therefore, it appears Defendants’ counsel made a good faith attempt to resolve the issue.

As an initial matter, Plaintiff argues this motion is untimely. When this motion was filed on December 13, 2023, trial was scheduled for January 10, 2024. On December 15, 2023, the Court granted Defendants’ motion to continue trial to March 22, 2024. The Court then ordered the following: “All discovery and expert motion deadlines will be associated with the new trial date, however, only fact discovery motions that are currently filed will be heard by the Court.” Therefore, since the current deadline to hear this motion is fifteen days before trial, the current motion deadline is March 7, 2024. (See Code Civ. Proc. § 2024.020.) Additionally, since this motion was filed before the December 15, 2023 order, it is also timely.

Here, Defendants argue that Plaintiff alleges a traumatic brain injury, and among other injuries, speech changes, memory issues, light sensitivity, noise sensitivity, jaw pain, mental fogginess, difficulty finding words, difficulty articulating thoughts, low self-esteem, balance issues, depth perception issues, anxiety, concentration issues. (Mendoza Decl. ¶ 3.) Plaintiff previously appeared for a neurological examination with Dr. Ludwig on March 7, 2023, but did not allow a mental status examination to take place. (Id. ¶ 4, Exh. B.) The instant motion asks for leave to conduct said mental status examination: the Montreal Cognitive Assessment and Rey 15 Item Memory Test. Defendant’s neurological expert declares this test is necessary “to arrive at a true and accurate diagnosis of Plaintiff's neurological complaints, if any, and to reach conclusions regarding causation, prognosis, and recommended treatment.” (Ludwig Decl. ¶ 8.) The examination will take approximately 45 minutes. The test is required to “evaluate Plaintiff's level of awareness during the tests” performed at the initial examination. (Id. ¶ 7.)

While Plaintiff argues that he already appeared for an examination with Dr. Ludwig, he does not dispute that the requested assessments were not performed. Instead, Plaintiff requests that he be allowed to audio record the examination and obtain the raw data from the tests.[1] (Opp., 7-8.) In reply, Defendants agree to the demand that the examination be audio recorded and assert that no raw data will be generated since the tests are not neuropsychological tests. (Reply, 2.) Additionally, Defendants’ motion and separate statement specifies the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, of the person who will perform the examination. Therefore, the Court finds good cause to grant leave to conduct the mental status examination.

Accordingly, Defendants Aiden Cole Berlinger and Jason Berlinger’s motion for leave to take Plaintiff’s examination is GRANTED. Plaintiff shall appear for examination on February 28, 2024 at 9:00 a.m., unless otherwise stipulated by the parties.

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

[1] Plaintiff appears to have objected to the mental status test during the initial March 7, 2023 examination on the basis that it was duplicative of the neuropsychological tests already performed. (See Mendoza Decl. ¶ 5, Exh. C.) However, in the opposition, Plaintiff does set forth specifically how it is duplicative, nor provide evidence refuting Dr. Ludwig’s declaration that the tests are necessary to diagnose Plaintiff’s neurological complaints. (Opp., 6.)

DEPT:	32
HEARING DATE:	February 14, 2024
CASE NUMBER:	21STCV40774
MOTIONS:	Motion to Conduct Additional Medical Examination of Plaintiff
MOVING PARTY:	Defendants Aiden Cole Berlinger and Jason Berlinger
OPPOSING PARTY:	Plaintiff Walter Andrade