Judge: David A. Hoffer, Case: 30-2020-01154149, Date: 2023-07-31 Tentative Ruling

The Motion presented by Defendant Hillstone Restaurant Group, Inc. (“Hillstone”), to compel Plaintiff to submit to an Independent Mental Examination (“IME”) is GRANTED. The parties are ordered to meet and confer within the next two days to set the date and time for the examination.

As a preliminary matter, although the Opposition asserts that the Motion is untimely as the discovery cut-off has passed, Hillstone has presented evidence to show that Plaintiff  Georgina Puglisi (“Plaintiff”), through her counsel, specifically agreed on 7/6/23 (before the cutoff) to allow the exam to be conducted on 7/27/23, but then reneged on 7/14/23.  (Hamilton Decl. ¶¶ 7-12, Exs. E- K.)  Under these circumstances, Plaintiff is estopped from relying on the cutoff dates. (See Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1352.) In addition, on motion of any party, the court may grant leave to complete discovery proceedings or to have a discovery motion heard after the “cut-off” dates. (C.C.P. §  2024.050(a).) Under the circumstances shown here, such relief is warranted in any event.

On the merits, Hillstone’s  Motion comports with C.C.P. § 2032.310, and the evidence presented is sufficient to demonstrate good cause for the relief requested as Plaintiff has clearly put her mental condition directly at issue here and has not asserted that C.C.P. § 2032.320(b) and (c) apply.  The Motion has also specified the one test to be performed, aside from a clinical exam. (See ROA 243, p. 2 [identifying only the Minnesota Multiphasic Personality Inventory-2 (MMPI-2)]; ROA 236, Ex. H.) Plaintiff evidently submitted to the same test for her expert. (ROA 259, Ex. 6, ¶ 9.)

Hillstone has also presented evidence to show that, during discovery, Plaintiff had not identified any mental health professional seen for her alleged emotional distress. (Hamilton Decl., ¶¶ 3-6.)  However, as her 7/3/23 expert designation identified a psychologist to testify on that subject, Hillstone on 7/5/23 requested the IME, to which Plaintiff’s counsel promptly agreed. (Id. at ¶¶ 6-8, Exs. E & F.)  Hillstone thus does not appear to have been dilatory in seeking the IME. Plaintiff also has not shown that any undue prejudice would result from permitting the IME to proceed at this time. The request for the IME is therefore granted.

As for the conditions for the examination, those proposed by Hillstone on 7/7/23 (ROA 236, Ex. H [proposed Stipulation])  appear generally reasonable and should be applied here, except that: (a) not more than 6 hours for the examination should be permitted, exclusive of breaks, but inclusive of the time for the MMPI-2 test; and (b) in addition to other limits on scope as stated therein, the examiner also shall not inquire into Plaintiff’s sexual and/or romantic history.

Within two days, Hillstone is to submit a proposed order which comports with C.C.P. § 2032.320(d) and the foregoing.

Counsel for Hillstone is ordered to give notice of these rulings.