Judge Daniel M. Crowley, Case Number: 23STCV17350, Date: 2024-12-16 Tentative Ruling

Plaintiff Jeffrey Ito’s motion, in pro per, to compel himself to an independent mental examination is denied.

Plaintiff Jeffrey Ito (“Ito”) (“Plaintiff”), in pro per, moves to compel himself to submit to an independent mental examination (“IME”) by Dr. Nily Osman, a neurologist. (Notice Motion, pg. 2; C.C.P. §§2032.020, 2032.310, 2032.320.)

Plaintiff filed the instant motion on October 9, 2024. Defendant University of Southern California (“USC”) (“Defendant”) filed its opposition on December 3, 2024. As of the date of this hearing no reply has been filed.

Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition . . . of that party or other person is in controversy in the action.

C.C.P. §2032.310 provides, “[i]f a party desires to obtain discovery by a mental examination, . . . the party shall obtain leave of court.” (C.C.P. §2032.310(a).) “A motion for an examination under subdivision (a) 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.” (C.C.P. §2032.310(b).)

C.C.P. §2032.310(b) provides, “A motion for an examination under subdivision (a) 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.” (C.C.P. §2032.310(b), emphasis added.)

Plaintiff failed to file a declaration stating that he met and conferred with Defendant, which violates C.C.P. §2032.310(b). (See Decl. of Ito.)

The physical or mental examination contemplated by C.C.P. § 2032.010, et seq. is that of an opposing party when the physical or mental condition of that party has been put in issue by that party’s contentions. (See, e.g., C.C.P. § 2032.220.) Plaintiff may not demand his own examination.

Nor is the expense of an examination under the present circumstances an expense subject to Plaintiff’s fee waiver. The Court has no ability to waive a third party’s right to a fee for services.

Finally, Plaintiff’s motion does not comply with C.C.P. §2032.310(b)’s requirement that the demand for an examination include the “time, place, manner, conditions, scope, and nature of the examination...” (C.C.P. §2032.310(b).)

Plaintiff’s motion to compel himself to submit to an IME by Dr. Nily Osman is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court