Judge: Daniel M. Crowley, Case: 19STCV09739, Date: 2022-10-12 Tentative Ruling
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Case Number: 19STCV09739 Hearing Date: October 12, 2022 Dept: 28
Defendant O.C. Special Events Security, Inc.’s Motion to Compel Plaintiff's Mental IME; Defendant O.C. Special Events Security, Inc.’s Motion to Compel Plaintiff’s Physical IME
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On March 21, 2019, Plaintiff Mauricio Alaniz (“Plaintiff”) filed this action against Defendants Yard House USA, Inc. (“Yard House”) and O.C. Special Events Security, Inc. (“OC”) for general negligence, premises liability and battery.
On November 19, 2020, Yard House filed an answer.
On April 19, 2021, Plaintiff filed the FAC and added Defendant Angel Telles (“Telles”).
On June 28, 2021, OC filed an answer.
On April 19, 2022, the Court dismissed Telles, without prejudice.
On July 13, 2022, OC filed a Motion to Compel Plaintiff’s Physical Exam to be heard on October 12, 2022. On September 30, 2022, Plaintiff filed an opposition. On October 44, 2022, OC filed a reply.
On July 18, 2022, OC filed a Motion to Compel Plaintiff’s Mental Exam to be heard on October 12, 2022. On September 29, 2022, Plaintiff filed an opposition. On October 4, 2022, OC filed a reply.
Trial is currently scheduled for January 12, 2023.
PARTY’S REQUESTS
OC requests the Court order Plaintiff to submit to an orthopedic exam conducted by Steven Nagelberg, M.D., at Cambridge Medical Group 10800 Paramount Blvd., #204A, Downey, CA 90241 on November 10, 2022, at 8:00 a.m., and a neuropsychological evaluation and exam conducted by Ari Kalechstein, PhD, at 11835 W. Olympic Boulevard Suite 1265E, Los Angeles, CA 90065 on November 29, 2022, at 10:30 a.m. OC also requests that the Court impose sanctions on Plaintiff, totaling $1,930.00.
Plaintiff requests the Court limit the scope of the mental exam and deny the physical exam.
LEGAL STANDARD
A defendant may demand one physical examination of the plaintiff in applicable personal injury cases, so long as the examination is not pain or intrusive and within 75 miles of the examinee’s place of residence. Code of Civil Procedure § 2032.220. Within 20 days of being served with the demand, the plaintiff served will respond either with intent to comply or refuse, and if the latter, provide reasons for the refusal. CCP § 2032.230.
Code of Civil Procedure §2032.310 (a) requires a party to obtain leave of court if it wishes to obtain discovery by an additional physical exam or any mental exam. Subdivision (b) provides that a motion shall “...specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Such a motion may only be granted on good cause shown. (CCP §2032.320(a).)
DISCUSSION
Orthopedic Exam
Plaintiff alleges that as a result of the subject incident he now suffers from neck and back pain.
Plaintiff argues that the neck and back pain is a secondary complaint, and not the crux of the issue; he states he has never treated with a doctor for neck and pack pain and does not intend to have surgery in the future. Additionally, Plaintiff states that due to pain from an unrelated tumor, any physical examination would be unduly burdensome, citing the August 1, 2022, neuropsychology exam as an example. He was unable to finish range of motion or other tests of his left side due to pain and discomfortable from moving his left arm.
Plaintiff, however, has identified neck and back pain as a result of the subject incident. Given that it could potentially factor into damages at trial, whether they be general or eventual special damages based on treatment (as Defendant identifies, Plaintiff stated the only reason he has yet to obtain treatment is due to his busy schedule), there is good cause to grant the motion.
OC has provided the appropriate information for the exam; the Court grants the motion. The Court denies the request for sanctions as Plaintiff has already submitted to one physical exam and Defendant had to bring this motion to obtain a second.
Mental Exam
Plaintiff alleges that as a result of the subject incident he now suffers from TBI, difficulty concentrating, memory loss, cognitive deficits, brain fog, irritability, sadness and mood swings.
Plaintiff argues that the demand is overbroad. Plaintiff states that the examiner should not be allowed to inquire into the precise manner of Plaintiff’s injury and his personal history. The Court disagrees—understanding the injury and Plaintiff’s history prior to the subject incident is relevant to evaluating Plaintiff’s condition after the injury. An examiner is entitled to ask these questions, even if discovery has otherwise been conducted. Plaintiff states that the examination, which is eight to nine hours without breaks, is too long; the Court disagrees. However, if Plaintiff’s counsel fears this will be too long for Plaintiff to do in one day, parties may spread out the exam over a two-day period.
Plaintiff also states that the examiner should be ordered to arrange and make a recording of the full examination from start to finish, to be produced without cost. Pursuant to CCP §2032.530, Plaintiff is entitled to make an audio recording of the mental exam. OC is not required to make a recording to present to Plaintiff, or to cover the cost of such a recording. Should Plaintiff wish to record the exam, Plaintiff will need to cover the cost and procedure, unless parties agree otherwise.
Finally, Plaintiff states all data should be provided to Plaintiff’s attorney. The Court disagrees. Psychologists are subject to certain ethical rules that require the raw test data be protected in order to ensure that the testing procedures remain accurate; as such, the raw test data will only be provided to Plaintiff’s own psych expert.
OC has provided the appropriate information for the exam; the Court grants the motion.
CONCLUSION
Defendant O.C. Special Events Security, Inc.’s Motion to Compel Plaintiff's Mental IME is GRANTED. Plaintiff is ordered to appear for an orthopedic exam with Steven Nagelberg, M.D., at Cambridge Medical Group 10800 Paramount Blvd., #204A, Downey, CA 90241 on November 10, 2022, at 8:00 a.m., or at another mutually agreeable date.
Defendant O.C. Special Events Security, Inc.’s Motion to Compel Plaintiff’s Physical IME is GRANTED. Plaintiff is ordered to appear for a neuropsychological evaluation and exam conducted by Ari Kalechstein, PhD, at 11835 W. Olympic Boulevard Suite 1265E, Los Angeles, CA 90065 on November 29, 2022, at 10:30 a.m., or at another mutually agreeable date.
Defendant O.C. Special Events Security, Inc.’s Request for Sanctions is DENIED.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.