Judge Ashfaq G. Chowdhury, Case Number: 22GDCV00676, Date: 2024-02-16 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 22GDCV00676, Date: 2024-02-16 Tentative Ruling

Case Number: 22GDCV00676 Hearing Date: February 16, 2024 Dept: E

Hearing Date: 2/16/2024 – 8:30am
Case No: 22GDCV00676 Trial Date: 09/23/2024
Case Name: Haptouhi Markarian v. Pluma, LLC, et al.

COMPEL MENTAL EXAMINATION

Moving Party: Defendants, Pluma, LLC; Jonathan Gerber erroneously sued as Jonathan Graber; and Ratner Property Management, Inc.

Responding Party: No Opposition by Plaintiff

Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Yes.

16/21 Day Lapse (CCP §12c and §1005(b)): Ok

RELIEF REQUESTED¿

Defendants move this Court to take an additional physical examination of the plaintiff by Dr. Ted Evans, a neuropsychologist.

Defendants’ motion is made pursuant to Code of Civil Procedure section 2032.310 and 2032.320.

BACKGROUND
Plaintiff, Haptouhi Markarian, filed a Complaint on 01/12/2024 against defendants, Pluma, LLC and Jonathan Gerber (erroneously sued as Jonathan Graber). Plaintiff’s Complaint alleges negligence. Plaintiff alleges that she slipped and fell at the defendants’ property. On February 7, 2023, the plaintiff filed an amendment to the complaint to add Ratner Property Management, Inc. as a defendant.

ANALYSIS

Legal Standard – Compel Mental Examination
Per Code of Civil Procedure section 2032.310, a party that seeks to require another party to submit to a mental examination must obtain leave of court. The court must grant the motion if the moving party shows good cause for the mental examination. (Code Civ. Proc., §2032.320, subd. (a).) 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. Super. Ct. (1987) 43 Cal.3d 833, 840.) The examination will be limited to whatever condition is “in controversy” in the action. (Code Civ. Proc., § 2032.020, subd. (a).) “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope and nature of the examination.” (Code Civ. Proc., § 2032.320, subd. (d).) The order must specify and list by name the diagnostic tests and procedures to be used in the examination. (Carpenter v. Super. Ct. (Yamaha Motor Corp.) (2006) 141 Cal.App.4th 249, 260.)

Declarations must state facts showing that “a reasonable and good faith attempt” to arrange the examination by stipulation was unsuccessful. (Code Civ. Proc., § 2032.310, subd. (b).)

Discussion
The court grants the motion.

Here, defendants have stated facts showing a reasonable and good faith attempt to arrange the examination by stipulation. (Decl. Boiadjian, ¶¶ 6,9.)

Defendants have specified the time, place, scope, as well as the identity and specialty of the person who will perform the examination, and the manner, conditions, and nature of the examination. The exam will occur on March 18, 2024, at 8:30 a.m. at 5363 Balboa Blvd., Suite 437, Encino, California 91316. (Mot, pg. 2.) The person who will perform the examination is Ted Evans, a neuropsychologist. (Mot, pg. 2.) The scope of the examination is to determine, evaluate, and assess the plaintiff’s mental condition and claims of mental injury in controversy. (Mot, pg. 2.) It will include claims of continuing and permanent problems. (Mot, pg. 2.) The manner, conditions, and nature of the examination will include the taking of an oral and written history and an interview of the plaintiff. (Mot, pg. 2.) The specific tests will be drawn from the following: Green’s Word Memory Test; Dot Counting Test; Wechsler Intelligence Scale for Children-Fourth Edition; Wechsler Memory Scale-Fourth Edition; Wide Range Achievement Test-Fourth Edition; Grooved Pegboard; TOMM; Finger Tapping Test; Stroop Color-Word Test; Controlled Oral Word Association Test; Boston Naming Test; Trailmaking Test; Auditory Consonant Trigrams; Rey Auditory Verbal Learning Test; Rey Complex Figure Test; California Verbal Learning Test-2; Wisconsin Card Sorting Test; Trauma Symptom Inventory-2; Minnesota Multiphasic Personality Inventory-A; Beck Depression Inventory-2; and Beck Anxiety Inventory. (Mot, pgs. 2 - 3.) The exam will take approximately seven hours. (Mot, pg. 3.)

The court finds good cause. Defendants assert that at deposition on March 21, 2023, the plaintiff testified that she experienced headaches, dizziness, and memory issues. (Decl. Boiadjian, ¶ 3.) Defendants further assert that plaintiff claims ongoing symptoms to various types of injuries including a traumatic brain injury. (Decl. Boiadjian, ¶ 5.) The court finds that plaintiff has placed a possible brain injury in controversy; thus, there is good cause.

The court grants the motion.

Hearing Date: 2/16/2024 – 8:30am
Case No: 22GDCV00676 Trial Date: 09/23/2024
Case Name: Haptouhi Markarian v. Pluma, LLC, et al.

COMPEL PHYSICAL EXAMINATION

Moving Party: Defendants, Pluma, LLC; Jonathan Gerber erroneously sued as Jonathan Graber; and Ratner Property Management, Inc.

Responding Party: No Opposition by Plaintiff

Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Yes.

16/21 Day Lapse (CCP §12c and §1005(b)): Ok

RELIEF REQUESTED¿

Defendants move this Court to take an additional physical examination of the plaintiff by Dr. Barry Ludwig, a neurologist.

Defendants’ motion is made pursuant to Code of Civil Procedure section 2032.310, subdivision (a).

ANALYSIS

Legal Standard – Compel Mental Examination
As a preliminary matter, because the defendants move this court for a neurologist to examine the plaintiff, the exam would be a mental, not physical exam. Thus, the court will adjudicate this motion as such.

Per Code of Civil Procedure section 2032.310, a party that seeks to require another party to submit to a mental examination must obtain leave of court. The court must grant the motion if the moving party shows good cause for the mental examination. (Code Civ. Proc., §2032.320, subd. (a).) 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. Super. Ct. (1987) 43 Cal.3d 833, 840.) The examination will be limited to whatever condition is “in controversy” in the action. (Code Civ. Proc., § 2032.020, subd. (a).) “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope and nature of the examination.” (Code Civ. Proc., § 2032.320, subd. (d).) The order must specify and list by name the diagnostic tests and procedures to be used in the examination. (Carpenter v. Super. Ct. (Yamaha Motor Corp.) (2006) 141 Cal.App.4th 249, 260.)

Declarations must state facts showing that “a reasonable and good faith attempt” to arrange the examination by stipulation was unsuccessful. (Code Civ. Proc., § 2032.310, subd. (b).)

Discussion
The court grants the motion.

Here, defendants have stated facts showing a reasonable and good faith attempt to arrange the examination by stipulation. (Decl. Boiadjian, ¶¶ 6,9.)

Defendants have specified the time, place, scope, as well as the identity and specialty of the person who will perform the examination, but have not specified the manner, conditions, and nature of the examination. The manner, conditions, and nature of the examination may consist of taking of an oral history, X-rays, CT scans, and/or MRI studies. (Mot, pg. 2.) It will include procedures and tests routinely used by physicians examining patients for conditions such as those alleged by the plaintiff. (Mot, pg. 2.) The exam will occur on February 29, 2024, at 10:30 a.m. at 2811 Wilshire Blvd., Suite 508, Santa Monica, California 90403. (Mot, pg. 2.) The scope of the examination is to determine, evaluate, and assess the plaintiff’s physical condition and claims of injury in controversy. (Mot, pg. 2.) The person who will perform the examination is Barry Ludwig, a neurologist. (Mot, pg. 2.)

However, the court finds good cause. Defendants assert that at deposition on March 21, 2023, the plaintiff testified that she experienced headaches, dizziness, and memory issues. (Decl. Boiadjian, ¶ 3.) Defendants further assert that plaintiff claims ongoing symptoms to various types of injuries including a traumatic brain injury. (Decl. Boiadjian, ¶ 5.) The court finds that plaintiff has placed a possible brain injury in controversy; thus, there is good cause.

The court grants the motion.