Judge: Daniel M. Crowley, Case: 20STCV34379, Date: 2022-10-19 Tentative Ruling
Case Number: 20STCV34379 Hearing Date: October 19, 2022 Dept: 28
Defendants Elizabeth Rose Moynier and Felician Sisters of North America’s Motion to Compel Mental Exam
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On September 9, 2020, Plaintiff Ahtziri Gutierrez Loera (“Plaintiff”) filed this action against Defendants Elizabeth Rose Moynier (“Moynier”) and Felician Sisters of North America (“FSNA”) for motor vehicle negligence and general negligence.
On January 20, 2021, Defendants filed an answer.
On September 22, 2022, Defendants filed a Motion to Compel Mental Exam to be heard on October 19, 2022. On October 5, 2022, Plaintiff filed an opposition. On October 12, 2022, Defendants filed a reply.
Trial is currently scheduled for January 6, 2023.
PARTY’S REQUESTS
Defendants request the Court compel Plaintiff to appears for a neuropsychological exam with Dean Delis, M.D., on October 26, 2022, at 9:30 a.m. at 31726 Rancho Viejo Road, Suite 104, San Juan Capistrano, CA 92675.
Plaintiff requests the Court deny the motion.
LEGAL STANDARD
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).)
Under CCP §2032.320, a Court shall not order a mental examination if a party has stipulated as follows: “(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed; AND (2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.”
DISCUSSION
Defendants provided all necessary information regarding the actual examination.
Plaintiff alleges that, as a result of the subject incident, Plaintiff has suffered damages including dizziness, memory loss, lack of concentration and headaches. Plaintiff has suffered previous mental injuries, prior to this incident, that Defendants believe may be a contributing cause of Plaintiff’s alleged current cognitive injuries.
Plaintiff argues that a neuropsychologist is unnecessary, and a neurologist’s examination would be sufficient. Defendants argue that a neurologist would be unable to determine what was the cause of her ongoing cognitive injuries.
Plaintiff stipulates that no claim is being made for mental or emotional distress over and above what is typically associated with a mild TBI stemming from a motor vehicle accident and that Plaintiff will not present any expert testimony at trial in this regard. Defendants argue that this stipulation is insufficient because Plaintiff’s mental and emotional distress claims are beyond the sort typically associated with Plaintiff’s injuries, specifically noting that Plaintiff has stated she now is quick to anger and feels unable to tolerate crowds and noise. Plaintiff alleges she suffered a minor TBI as a result of a car accident. Dizziness, memory loss, lack of concentration and headaches all are typical injuries associated with such an injury. Agitation or anxiety are similar associated injuries from concussions.
The Court grants the motion.
CONCLUSION
Defendants Elizabeth Rose Moynier and Felician Sisters of North America’s Motion to Compel Mental Exam is GRANTED.
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.