Judge Audra Mori, Case 20STCV02958 2023-02-06 Tentative Ruling

Plaintiff David Gregory Crofts (“Plaintiff”) filed this action against Defendants Ronaldo Belk and Secure Sheet Metal, Inc. (collectively, “Defendants”) for damages arising from a motor vehicle accident.

At this time, Defendants move for an order compelling Plaintiff to submit to a neurologic medical examination on February 22, 2023 at 9:00 a.m. with Dr. Barry Ludwig, M.D. at 12811 Wilshire Blvd., Suite 508, Santa Monica, CA 90403, and to pay sanctions in the amount of $1,460.00 for bringing this motion. The motion is unopposed.

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP §2032.320(a).)

The examination will be limited to whatever condition is “in controversy” in the action. (CCP §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. Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of the plaintiff. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)

Here, Defendants provide that Plaintiff testified at his deposition that he is treating with a neurologist for complaints of headaches, ringing in the ears, and difficulty sleeping. Defendants assert that after meeting and conferring with Plaintiff’s counsel, Plaintiff agreed to appear for a neurologic exam but later cancelled days before the exam was set. Given Plaintiff’s neurologic injuries, Defendants argue it is imperative their expert be given an opportunity to examine Plaintiff prior to trial. Plaintiff does not oppose the motion or dispute putting his mental condition at issue. The Court thus finds good cause for the mental examination sought.

Nonetheless, “[CCP] Section 2032.320 governs the order granting a motion for a mental examination. To protect the plaintiff's privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause. [Citation.] In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination: ‘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.’ (§ 2032.320, subd, (d).) (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259 [emphasis in original].) In Carpenter, the defendant argued that simply naming the types of tests to be performed, e.g., “emotional and cognitive functioning” tests, as opposed to the exact tests themselves, was sufficient in the context of a mental health examination; however, the Court of Appeals disagreed and noted that the statute required the defendant to specify the “diagnostic tests and procedures,” which means they must be listed by name. (Id. at 260.)

In this case, Defendants’ demands for Plaintiff to appear for a neurologic exam state only that the scope of the neurological examination shall require that plaintiff provide their history and possibly X-rays and be subjected to “any and all clinical, orthopedic tests and laboratory tests as required by the examining physician.” (Mot. Exhs. C, E, and H.) Neither Defendants’ motion nor their notices state what actual diagnostic tests Dr. Ludwig expects to use. (Carpenter, 141 Cal.App.4th at 259; Ibid.) Defendants must specify the diagnostic tests and procedures to be performed, conditions, scope and nature of the examination. (Carpenter, 141 Cal.App.4th at 259.) Accordingly, Defendants’ motion does not comply with CCP § 2032.320.

While Defendants may establish good cause for a mental exam, the Court, in granting a motion to compel a mental examination, must list in its order the names of the tests to be performed, which it cannot do if the moving party has not provided them. (Id., supra, at 260-262.)

Based on the foregoing, Defendant’s motion to compel Plaintiff’s neurologic exam is denied without prejudice.

Because the motion is denied, Defendants’ request for sanctions of $1,460 is denied. Moreover, the authority cited by Defendants, CCP § 2025.450(c), pertains to depositions, not motions compelling a mental exam of a party.

The parties are encouraged to meet and confer about executing a stipulation to resolve this matter promptly.

Hon. Audra Mori

Judge of the Superior Court