Judge: Anne Hwang, Case: 23STCV10975, Date: 2024-03-05 Tentative Ruling

Case Number: 23STCV10975    Hearing Date: March 18, 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 15, 2023, Plaintiff Maria Vela-Zuniga (“Plaintiff”) filed a complaint against Defendants Los Angeles County Metropolitan Transportation Authority and Does 1 to 100 for negligence after falling in a bus.

            Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant)” now moves to allow a neurological examination and orthopedic examination of Plaintiff on the same date. No opposition was filed.  

At the hearing for this motion, Plaintiff did not appear. The Court posted a tentative ruling indicating that the Court was inclined to grant in part and deny in part Defendant’s motion. The Court granted Defendant’s request for a continuance of this motion and ordered Defendant to file a supplemental brief regarding the nature of scope of Dr. Ludwig’s examination.

On March 11, 2024, Defendant filed its supplemental brief. Plaintiff’s counsel filed a declaration in opposition to the brief. Defendant filed a supplemental declaration.

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 Melanie O. Paulick states that on January 18, 2024, she sent Plaintiff’s counsel a meet and confer letter to stipulate allowing the two medical examinations. (Paulick Decl. ¶ 4.) Plaintiff’s counsel did not respond. Therefore, it appears Defendant’s counsel made a good faith attempt to resolve the issue.

DISCUSSION

Here, Plaintiff alleges she suffered orthopedic injuries to her body and neurological injuries to her brain as a result of her fall. (Paulick Decl. ¶ 3.) Defendant argues that because of these allegations, good cause exists to allow the two medical examinations.

Defendant seeks consecutive examinations at the same location and date: an orthopedic examination from Dr. Thomas Grogan and a neurological examination from Dr. Barry Ludwig. Defendant asserts the examinations will take place at Dr. Ludwig’s office and will each last approximately 1 to 1.5 hours. (Motion, 4.) It also asserts that Dr. Ludwig’s examination “will consist of an evaluation of Plaintiff’s nervous system to determine the existence, cause, nature and extent of her injuries.” (Id. at 5.) Defendant also contends that no physically painful tests or invasive procedures will be performed during the examinations.

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.)  

 Defendant’s supplemental brief states that Dr. Ludwig will administer the Mini-Mental State Exam and the Montreal Cognitive Assessment to assess Plaintiff’s cognitive function. Therefore, Defendant has sufficiently outlined the nature and scope of the examination.

The Declaration of Joshua Allton asks the Court to continue this matter so Plaintiff’s counsel may file an untimely opposition. Plaintiff’s counsel argues that the tests Dr. Ludwig will administer are associated with neuropsychological testing, and under Randy's Trucking, Inc. v. Superior Court of Kern County, Plaintiff is entitled to the raw data from the examination. Plaintiff’s counsel states that he asserted he would allow the two examinations during a February 14, 2024 telephone call with Defendant’s counsel, as long as he would be provided the raw data. (Allton Decl. ¶ 2–3.) Defendant’s counsel asked that the data be sent to Plaintiff’s expert. In response, Mr. Allton asserted he would stipulate to a protective order, but Defendant’s counsel disagreed. (Id. ¶ 4–5.) Mr. Allton contends that Defendant’s counsel later informed him she was not seeking a neuropsychological exam and there would be no data to produce.[1]

Based on Defendant’s supplemental brief, it does not appear that Plaintiff’s responses to questioning will be in a form other than oral responses. To the extent that Plaintiff seeks permission to record the examination, the Court would permit Plaintiff to do so. To the extent that Plaintiff seeks the test scores or the expert’s notes on testing, the Court would also order such disclosure. Plaintiff has not provided any other reason to belief that other “raw test data” will be generated.

Therefore, the Court grants the motion.

CONCLUSION AND ORDER

Accordingly, Defendant Los Angeles County Metropolitan Transportation Authority’s motion to permit the two independent medical examinations is GRANTED. Plaintiff is ordered to appear for examination at a mutually convenient date and time.

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