Judge: Anne Richardson, Case: 21STCV29331, Date: 2023-09-06 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV29331    Hearing Date: October 19, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Maria Leon sues Defendant Fathers of St. Charles dba Villa Scalabrini Retirement Center & Special Care Unit (allegedly erroneously sued as Villa Scalabrini, Villa Scalabrini Council, and Villa Scalabrini (9682); collectively referred to hereafter as Employer Defendants), Ardeshir Afshar, Rolando Escamilla, Alicia Ávila, and Does 1 to 100.

Her August 9, 2021 Complaint alleges causes of action of: (1) FEHA Age Discrimination; (2) FEHA Age Harassment; (3) FEHA Disability Discrimination; (4) FEHA Failure to Provide Reasonable Accommodation [re Disability]; (5) FEHA Failure to Engage in the Interactive Process [re Disability]; (6) FEHA Failure to Prevent Discrimination and Retaliation; (7) FEHA Retaliation; (8) Violation of California Family Rights Act [CFRA]; (9) CFRA Retaliation; (10) Wrongful Termination in Violation of Public Policy; and (11) Intentional Infliction of Emotional Distress.

These claims arise from allegations that Plaintiff Leon—who was born in 1947—was employed by Employer Defendants as a Food Service Employee between March 31, 1995 and August 6, 2020, during which time, she was discriminated against and harassed based on her age and her actual or perceived disabilities, terminated from her employment due to her age, disabilities and/or perceived disabilities (injured shoulder and left wrist), due to her requests for reasonable accommodations, exercise of rights under the California Family Rights Act (CFRA), and need for leave under the CFRA and/or taking and/or requesting medical leave, and for opposing practices prohibited by the Fair Employment and Housing Act (FEHA) (e.g., reporting discrimination and harassment she experienced to management).

Motion Before Court

On August 1, 2023, Defendants moved to compel a mental examination (IME) of Plaintiff Leon.

On October 5, 2023, Plaintiff Leon opposed the IME motion.

On October 12, 2023, Defendants replied to the opposition.

Defendants’ IME motion is now before the Court.

Motion for Court Ordered Mental Examination

Legal Standard

Any party can make a motion for a physical or mental examination. (Code Civ. Proc., § 2032.310, subd. (a); see, e.g., Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1880-1881 [plaintiff in defamation case made motion for mental examination of defendant cross-complainant because defendant claimed mental anguish from plaintiff’s sexual harassment].) A mental examination must be sought through a motion rather than, for example, simply through a demand. (See Code Civ. Proc., § 2032.310, subd. (a); Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259.)

The points and authorities supporting the motion must:

(1) Identify the examinee and show that the person is a party to the action, an agent of any party, or a natural person in the custody or under the legal control of a party (see Code Civ., Proc., § 2032.020, subd. (a));

(2) Show how the examinee’s physical or mental condition has been placed in controversy in the case (Code Civ. Proc., § 2032.020, subd. (a));

(3) Establish good cause for the physical or mental examination, where good cause involves providing specific facts justifying discovery and show that the inquiry is relevant to the subject matter of the case or reasonably calculated to lead to the discovery of admissible evidence (Code Civ. Proc., § 2032.320, subd. (a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 840, fn. 6 [general rule and defining good cause]; see Code Civ. Proc., 2032.320, subd. (e)(1) [must show good cause to conduct examination more than 75 miles from the examinee’s residence]; Carpenter v. Superior Court, supra, 141 Cal.App.4th at p. 259 [good cause required for a mental examination]); Greyhound Corp. v. Superior Court (1961) [good-cause requirement serves as a barrier to excessive and unwarranted intrusions]);

(4) Provide the details for the examination, including the time, place, and manner of examination, condition, scope, and nature thereof, and examiner (Code Civ. Proc., § 2032.310, subd. (b)); and

(5) State the examining party’s willingness to pay for the examinee’s travel reasonable expenses and costs where the motion requests a place for the examination that is more than 75 miles from the examinee’s residence (Code Civ. Proc., § 2032.320, subd. (e)(2)).

The motion need not include a separate statement. (See Cal. Rules of Court, rule 3.1345, subd. (a)(6).)

Order Compelling IME: DENIED.

After review, the Court finds that this motion is untimely.

“Except as otherwise provided in [Code of Civil Procedure sections 2024.010 to 2024.060], any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).) On February 28, 2022, this case was initially set for trial for August 29, 2023, thus making the 30-day deadline for discovery proceedings July 31, 2023 and 15-day deadline for hearing discovery motions August 14, 2023. While the Court ordered a continuance of some pre-trial dates and deadlines on July 12, 2023, that continuance did not relate to “non-expert discovery and the defense mental examination,” with “[a]ll parties reserv[ing] their rights and objections as to timeliness of expert designation/defense mental examination.” (7/11/23 Ex Parte Application, Proposed Order at p. 8, as modified and signed 7/12/23.) Though Defendants argue that they initiated the process of securing an IME on July 11, 2023 and July 12, 2023 (Mot., p. 7; Reply, p. 6), they were only entitled to completion of those IME proceedings through July 31, 2023, and to a hearing on their IME motion by August 14, 2023. (Code Civ. Proc., § 2024.020, subd. (a).) Yet, no mental examination was completed by July 31, 2023, and this motion was set for hearing on October 19, 2023 based on a filing date of August 1, 2023, well beyond August 14, 2023. (Mot., p. 1; see also 7/11/23 Ex Parte Application, p. 5 [Defendants recognizing that “[a]n independent mental evaluation of Plaintiff [had to] be performed by July 30, 2023,” a Sunday] & Proposed Order at p. 8, as modified and signed 7/12/23, § 3 [declining to extend deadlines on defense mental examination].)

Critically, while Defendants argue that they were caught by surprise when Plaintiff designated an expert relating to emotional distress damages on July 10, 2023 because Defendants were under the impression that Plaintiff would only seek garden variety damages, this position is inconsistent with Defendants’ overall briefing. (Compare Reply, p. 3 [arguing that the July 10th designation was “the first indication to Defendants that Plaintiff intended to argue more than garden variety emotional distress and the first indication that [an IME] would be necessary and appropriate”], with Mot., pp. 2-5 [discussing procedural history for this action, throughout which Plaintiff consistently raised emotional distress and noneconomic damages relying on emotional distress], 7-9 [relying on procedural history in support of good cause for granting this IME motion]), and Reply, p. 1 [noting that Maria Leon “primarily seeks recovery of alleged emotional distress damages” and includes a claim for intentional infliction of emotional distress].

Defendants also do not explain how they exercised diligence by waiting until July 31, 2023 to file this motion when Plaintiff did not respond to their request to stipulate to the DME on July 11 and 12, 2023. Indeed, had Defendants filed their motion immediately, they might have been able to get a hearing on calendar by the discovery motion cut-off date (which is to have a hearing on the motion 15 days before the date initially set for trial, not to file the motion by that date; see Code Civ. Proc. § 2024.020 (a)).

Defendants’ motion is thus DENIED.

Sanctions: DENIED.

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2032.240, subd. (c).)

In her opposition, Plaintiff Leon seeks monetary sanctions against Defendants and counsel for bringing this motion. (Opp’n, pp. 9-10.)

The Court finds that it would be unjust to impose monetary sanctions on Defendants. Plaintiff’s emotional distress is clearly relevant to this action because noneconomic damages may be premised on such distress. Moreover, an IME is traditionally a proper discovery tool to determine issues relating to emotional distress—arguments relating to notice requirements and duplicativeness of the IME aside. (See Opp’n, pp. 8, 9.)

Consequently, the Court finds that it would be unjust to sanction Defendants here, for which reason Plaintiff Leon’s monetary sanctions request is DENIED. 

Conclusion

Defendants Fathers of St. Charles dba Villa Scalabrini Retirement Center & Special Care Unit, Ardy Afshar, Rolando Escamilla, and Alicia Ávila’s Motion for Court Ordered Mental Examination of Plaintiff Maria Leon is DENIED.

Plaintiff Maria Leon’s opposition request for sanctions is DENIED.