Judge: Anne Hwang, Case: 22STCV16190, Date: 2024-03-05 Tentative Ruling

Case Number: 22STCV16190    Hearing Date: April 15, 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

BACKGROUND

            On May 16, 2022, Plaintiff Trenna Jones (“Plaintiff”) filed a complaint against Defendants The Vons Companies Inc., Luis Rivera, and Does 1 to 10 for premises liability after an alleged slip and fall.

            Defendant The Vons Company, Inc. (“Defendant)” now moves for leave to conduct a mental examination of Plaintiff. No opposition 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.¿¿ 

MEET AND CONFER

The Declaration of Kori Macksoud states that counsel attempted to confer but was unsuccessful due to a breakdown in communication with Plaintiff’s counsel and Plaintiff. (Macksoud Decl. ¶ 5.) Therefore, it appears Defendant’s counsel made a good faith attempt to resolve the issue.

DISCUSSION

Here, Plaintiff alleges she suffers from headaches, short-term memory problem, speech and dialect changes, and a traumatic brain injury. (Macksoud Decl. ¶ 3–4, Exh. A.)  Therefore, Defendant has shown good cause for the mental examination.

Defendant seeks an examination with neurologist, Dr. Edwin C. Amos. The examination will occur at Dr. Amos’s office in August 2024.

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.)  

 Here, Defendant’s motion does not state the specific tests of the mental examination by name, instead stating that Dr. Amos will “administer, score and interpret neurological and psychological test data.” (Motion, 5.)

Therefore, the motion to permit the mental examination of Plaintiff is denied as procedurally defective.

CONCLUSION AND ORDER

Accordingly, Defendant The Vons Company, Inc.’s motion for leave to conduct the mental examination of Plaintiff is DENIED.  

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