Judge: Audra Mori, Case: 20STCV04888, Date: 2022-09-16 Tentative Ruling

Case Number: 20STCV04888    Hearing Date: September 16, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff, Gayland Maurice Drake, Jr. (“Plaintiff”) filed this action against Defendants, Zara Express, LLC and Teklit Okbagergish Tesfaldet (collectively, “Defendants”) for damages arising from a motor vehicle accident.   

At this time, Defendants move for an order compelling Plaintiff to submit to a physical and mental examination with Dr. Barry Ludwig (“Ludwig”).  Plaintiff opposes the motion, and Defendant filed a reply. 

Defendants assert that Plaintiff has placed his neurological condition at issue in this action, including by claiming a traumatic brain injury as a result of the accident, and that the proposed second physical exam is necessary to evaluate Plaintiff’s allegations concerning his alleged ongoing neurological injuries.  Defendants provide that Plaintiff refuses to stipulate to the proposed exam because Plaintiff has already appeared for a physical and mental exam in this action, but Defendant argues that the proposed exam, which consists of a neurological exam, to evaluate Plaintiff’s traumatic brain injury claims. 

In opposition, Plaintiff argues that Defendants’ motion and notice of examination are defective because they fail to specify all testing that is to be performed on Plaintiff.  Further, Plaintiff avers that Defendants’ demand and proposed order also contemplate Dr. Ludwig will require a clinical interview with Plaintiff, but Plaintiff argues there is no need for a such a broad interview. 

In reply, Defendants argue their motion clearly sets forth the tests, procedures, and scope of examination by Dr. Ludwig, and that Dr. Ludwig is permitted to ask relevant questions pertaining to Plaintiff’s alleged injuries.

2. Motion to Compel Second Physical and Mental Examination

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.) 

As an initial matter, the Court notes that although Defendants captioned their motion as a motion to compel a physical exam of Plaintiff, Defendants are actually moving to compel neurological exam with Dr. Ludwig that Defendants assert will consist of both a physical and mental exam.  (Mot. at p. 2:16-20.)  Further, the parties both represent that Plaintiff has already appeared for a defense physical exam and defense mental exam set by Defendants.  Accordingly, Defendants are moving to compel both a second physical and mental examination of Plaintiff. 

Defendants argue there is good cause for the proposed physical and mental examination because Plaintiff has placed his neurological condition in controversy by claiming a traumatic brain injury and resulting balance dysfunction, vertigo, and memory problems.  Further, Defendants contend that Plaintiff will clearly designate a neurologist as an expert witness in this matter.

However, to the extent that Defendants contend a second physical examination of Plaintiff is necessary, Defendants do not provide any evidence or argument as to why the first physical exam of Plaintiff is insufficient to address Plaintiff’s physical conditions he claims as a result of the traumatic brain injury.  The only evidence submitted by Defendants is Plaintiff’s discovery responses showing Plaintiff is claiming to have suffered a traumatic brain injury, but Defendants do not submit any declaration from their expert establishing good cause for the proposed second physical exam. 

Similarly, while Defendants acknowledge Plaintiff has already appeared for a defense mental exam with a neuropsychologist, Defendants fail to articulate why a second mental exam is required to assess Plaintiff’s mental condition in this action.  The Court notes it previously granted Defendants’ motion to compel a mental exam of Plaintiff on June 21, 2021, in relevant part based on Plaintiff’s alleged traumatic brain injury and cognitive issues.  Defendants do not now offer any explanation as to why both an exam with a neuropsychologist and a neurologist are required to assess Plaintiff’s traumatic brain injury claims.  Additionally, although Defendants speculate that Plaintiff will designate a neurologist as an expert in this matter, Defendants do not cite any authority holding that this is sufficient alone to establish good cause for multiple mental exams of Plaintiff.

Therefore, Defendants fail to establish good cause for the proposed second physical and mental examination of Plaintiff. 

Furthermore, as Plaintiff argues in opposition, Defendants’ notice and motion fails to comply with CCP § 2032.320. 

“[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, 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’ notice of motion provides:

The examination will consist of a clinical interview with Dr. Ludwig regarding Plaintiff’s prior medical history, review of systems, family medical history, and social history. Dr. Ludwig will also conduct a physical examination to test Plaintiff’s strength, coordination, reflexes, gait, and sensation. Finally, the examination will conclude with a brief mental state exam.

Ancillary tests may be added based on Dr. Ludwig’s professional judgment at the time of the examination and depending upon Plaintiff’s performance, stamina, and other factors. The examination will not be duplicative of any other defense examinations of Plaintiff, nor will it involve any invasive testing.

(Mot. at 2:16-24.)  Further, Defendants demand for the proposed exam merely states, “[t]he examination will not include any diagnostic test or procedure that is painful, protracted, or intrusive.”  (Mot. Exh. B.)  Defendants’ motion and notice of examination fail to state what actual diagnostic tests Dr. Ludwig expects to use.  (Carpenter, 141 Cal.App.4th at 259; Mot. Exh. C.)  Defendants must specify the diagnostic tests and procedures, conditions, scope, and nature of the examination.  (Id.)  Defendants’ motion and examination demand are therefore insufficient to comply with CCP § 2032.320.  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. 

            Based on the foregoing, Defendants’ motion to compel a second physical and mental examination of Plaintiff is denied.

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 16^th day of September 2022