Judge: Anne Hwang, Case: 22STCV16658, Date: 2023-12-13 Tentative Ruling

Case Number: 22STCV16658    Hearing Date: March 13, 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 19, 2022, Plaintiff Terecita Reynaga-Sanchez (“Plaintiff”) filed a complaint against Defendants Maria Villalon, Eric Villalon, and Armando Villalon (“Defendants”) for damages related to a motor vehicle accident that allegedly occurred on June 15, 2020.  

            Defendants now move for leave to conduct a neuropsychological examination of Plaintiff, with Dr. Manuel Saint Martin, M.D. on March 20, 2024. Plaintiff opposes and Defendants reply.

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 Mark P. LaScola shows that counsel for Defendants have attempted to notice and schedule this examination since August 2023.  Though the efforts were not fruitful, it appears Defendants’ counsel made reasonable attempts to resolve the issue.

DISCUSSION

Here, Plaintiff has alleged mental injuries such as cognitive issues, post-traumatic stress disorder, mild neurocognitive disorder, anxiety disorder, major depressive disorder, and insomnia. (LaScola Decl. ¶ 4, Exh, A, FROG, 6.2, 6.3.)  Plaintiff already underwent a physical examination under Code of Civil Procedure section 2032.220(a).

Defendants seek leave to conduct a neuropsychological examination of Plaintiff, with Dr. Manuel Saint Martin, M.D. on March 20, 2024. The examination will take place at Dr. Martin’s office at 9:00 a.m. Defendants have listed the tests that may be used at this examination. (Motion, 4–5.) The examination is reserved for eight hours, but Defendants assert that the length of the examination will also be affected by the number of breaks Plaintiff requires, and her cooperation.

In opposition, Plaintiff argues the proposed tests are ineffective or invalid, and cites to various journals. Plaintiff also contends that without any recording of the examination, it will be unclear how long the examiner spent on each test. Plaintiff asks for the court to allow Plaintiff’s attorney to attend, or in the alternative, to limit the examination to four hours, to prohibit the examiner from asking questions about the litigation, rather than the underlying injuries, to prohibit questions about attorney client communications, work product, body parts not at issue, and Plaintiff’s financial status. Plaintiff seeks to have the entire examination recorded.

Code of Civil Procedure section 2032.530 expressly states “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.”

In reply, Defendants argue that the issues raised in the opposition were never raised during the meet and confer process. Defendants also agree to the audio recording if the recording is immediately sent to Plaintiff’s neuropsychological expert. Defendants argue that transmitting raw test data to non-psychologists could compromise future use of the tests. The Court of Appeal in Randy’s Trucking upheld the trial court’s decision directing a neuropsychologist to transmit an examination recording to the plaintiff’s counsel on multiple grounds, such as protecting against abuses and disputes over what transpired during the examination, ensuring the examiner does not overstep the bounds set by the court for the mental examination, and enabling the attorney to have more than a second-hand understanding of the information being scrutinized. (Randy's Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, 838.)

The Court grants the request to conduct a neuropsychological examination and grants Plaintiff’s request to record the examination. To the extent that Defendants seek a protective order regarding the recording, the Court would consider a protective order that limits disclosure of the recording to counsel for Plaintiff and any experts. The Court overrules Plaintiff’s objections to the particular tests; the issues raised can be explored in cross-examination of the expert. The Court denies Plaintiff’s request to have an attorney present at the examination as the recording will adequately protect Plaintiff’s interests. In addition, the Court denies Plaintiff’s requests to limit the examination in time and manner of questioning, except that the examination should be limited to the areas of questioning and the amount of time necessary for the expert to reach his opinions, and may not improperly invade on the attorney-client privilege.

CONCLUSION AND ORDER

Accordingly, Defendant’ motion for leave to conduct Plaintiff’s neuropsychological examination of Plaintiff is GRANTED. Plaintiff shall be permitted to record the examination pursuant to Code of Civil Procedure section 2032.530.

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