Judge: Audra Mori, Case: 20STCV15925, Date: 2022-09-12 Tentative Ruling

Case Number: 20STCV15925    Hearing Date: September 12, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Arthur Allen filed this action against Defendants Mi Mercadito, Inc., Mi Ranchito Carniceria, Inc. and L.S. Property Management, LLC, Eukya USA, Inc. dba Eukya Furniture, and Charlie’s Fixtures, LLC (collectively, “Defendants”) for damages Plaintiff sustained after a chair he was sitting in collapsed at defendants’ property. 

At this time, Defendants move to compel a mental examination of Plaintiff.  Plaintiff opposes the motion, and Defendants filed a reply.

Defendants move to compel a neuropsychological examination of Plaintiff with Dr. Philip Stenquist, Ph.D., ABCN (“Dr. Philip Stenquist”) because Plaintiff is claiming he suffered post-concussive syndrome and a traumatic brain injury, among other cognitive defects, as a result of the incident.  Defendants contend there is good cause for the examination because Plaintiff has placed his mental condition in controversy.  Further, Defendants seek an order requiring Plaintiff to pay $7,500 for failing to appear at two previous mental examinations Plaintiff indicated he would appear for. 

In opposition, Plaintiff asserts he does not oppose the request for a neuropsychological exam, but Plaintiff argues that Defendants are improperly attempting to impose sanctions on Plaintiff.  Plaintiff asserts he failed to appear for the two previous mental exams due to unforeseen deaths of close family members and friends, and due to an anxiety and panic attack the morning of an exam.  Plaintiff asserts that he has offered to stipulate to a mental exam to avoid further delay, but Defendant have not agreed. 

In reply, Defendants contend that Plaintiff’s failure to appear for the previous noticed mental exams have precluded the exam from going forward, and Defendants have incurred $7,500 in no-show fees as a result.  Additionally, Defendants contend that they have attempted to meet and confer with Plaintiff about a mental exam, but Plaintiff has not agreed to pay the $7,500 no-show fees.

2. Motion to Compel the Defense Mental Examination of the Plaintiff

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, Plaintiff does not dispute putting his mental condition in controversy, and Plaintiff does not oppose Defendants’ request to compel a mental exam of Plaintiff.  Given Plaintiff’s claims in this action, the Court finds good cause for a mental examination of Plaintiff. 

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, 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.) 

Here, Defendants request an order requiring Plaintiff to appear for a mental exam with Dr. Stenquist “as indicated in Defendants[’] notice of examination.”  (Mot. at p. 2:20-24.)  Defendants’ notice of examination does not state what actual diagnostic tests Dr. Stenquist expects to use.  (Carpenter, 141 Cal.App.4th at 259; Mot. Exh. C.)  Defendants must specify diagnostic tests and procedures, conditions, scope and nature of the examination.  (Id.)  Defendants do not specify any tests that will be performed and instead the notices attached to the motion state that “The physical examination shall include, but is not limited to, the use of accepted diagnostic instruments, tests, manipulations and techniques. It will also include but will not be limited to a neurological examination as well as a musculoskeletal examination. The examination will not include any diagnostic testing or procedure that is painful, protracted or intrusive.”  (Mot. Exh. C.)  This is insufficient to comply with CCP § 2032.320.

Consequently, 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.  (Carpenter, 141 Cal.App.4th at 260-262.) 

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

Because the motion is being denied, Defendants’ request for an order requiring Plaintiff to pay $7,500 for prior no-show fees is also denied.  Moreover, Defendants provide no authority in their moving papers showing the request for such fees is proper.

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

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 12^th day of September 2022