Judge: Douglas W. Stern, Case: 19STCV10725, Date: 2022-12-15 Tentative Ruling
Case Number: 19STCV10725 Hearing Date: December 15, 2022 Dept: 68
Motion to Compel Plaintiff’s Attendance at Independent
MENTAL Examination
BACKGROUND
Plaintiff
filed this case on March 26, 2019, as a landlord/tenant habitability matter.
Plaintiff alleges that while she lived at Defendant Esther Chao’s property (dba
as Las Palmas Apartment), Defendant failed to maintain the property which
caused a roof leak and mold in Plaintiff’s unit. Plaintiff’s complaint further
alleges that she suffered respiratory and mental health complaints because of
the roof leak and mold.
As part of
her damages claim, Plaintiff is alleging that she suffered emotional distress.
On July 5, 2022,
Defendant served Plaintiff with Defendant’s Notice of Independent Mental Examination
of Plaintiff, with psychologist Dr. Loren Hill, for an examination date of August
3, 2022. (Newell Decl., at ¶ 2, Ex. A.) Plaintiff failed to appear for the
scheduled examination. (Newell Decl., at ¶ 4.) Further attempts to schedule an
examination were unsuccessful. An examination was set for September 14, 2022,
and on September 7, 2022, Plaintiff’s counsel advised Defendant’s counsel that
Plaintiff would not be appearing for the September 14 mental health
examination with Dr. Hill. (Newell Decl., at ¶ 9, Ex. F.)
A new mental
health examination was scheduled and noticed for December 6, 2022. Defendant
had to reschedule the examination after learning that Dr. Hill’s office would
be closed for renovations. (Reply at p. 2.) On November 23, 2022, Defendant
served Defendant’s Third Notice of Independent Mental Health Examination on
Plaintiff with an examination date of January 9, 2023, with Dr. Hill. (Newell
Reply Decl., at ¶ 3, Ex. B.)
Defendant
filed this motion to compel attendance at a mental examination on October 17,
2022. Defendant’s basis for filing this motion is that a medical examination is
necessary because Plaintiff has placed her mental condition in controversy,
Plaintiff failed to appear for the examination, and Plaintiff’s objections to
the examination are waived for being untimely. Plaintiff filed her opposition
on December 5, 2022. In her opposition, Plaintiff indicated that she would
submit to a mental examination, but only if it is conducted remotely because
she is immunocompromised. She also argues that Defendant may only demand one
physical examination under the demand procedure. In Defendant’s reply, filed on
December 8, 2022, Defendant indicates that she is unaware of any medical
records demonstrating Plaintiff’s alleged immunocompromised status. Further,
Defendant contends that an in-person examination is necessary for Dr. Hill to
evaluate the full extent of Plaintiff’s alleged mental health issues, which are
allegedly beyond the “garden variety.” Defendant requests that the Court order
Plaintiff to attend the in-person mental examination with Dr. Hill that is
scheduled for January 9, 2023, at 9:00 am, located at 3409 W. 43rd
Street, Los Angeles, California 90008.
Defendant
indicates that efforts were made to meet and confer with Plaintiff’s counsel
regarding the mental examination, and that Plaintiff’s counsel refused to limit
the alleged mental health damages to the “garden variety.” (Newell Decl., at ¶
8, Ex. E.)
LEGAL STANDARD
AND ANALYSIS
Code of Civil Procedure §
2032.020(a) permits the mental examination of a party in any action in which
the mental condition of that party “is in controversy in the action.” Only a
single physical exam is covered by the “demand” procedure. (CCP § 2032.220.)
Otherwise, a party must seek a court order compelling examination. (CCP § 2032.310(a).)
“A Plaintiff in a negligence action
who asserts mental or physical injury…places that mental or physical injury
clearly in controversy and provides the defendant with good cause for an
examination to determine the existence and extent of such asserted injury.” (Schlagenhauf
v. Holder (1964) 379 U.S. 104, 119.) Code of Civil Procedure § 2032.320(a)
provides, “[t]he court shall grant a motion for physical or mental examination
under Section 2032.310 only for good cause shown.” Good cause requires “the
party produce specific facts justifying discovery and that the inquiry be
relevant to the subject matter of the action or [be] reasonably calculated to
lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987)
43 Cal. 3d 833, 840.)
Reuter v. Superior Court
(1979) 93 Cal.App.3d 332, 341 is also informative, stating: “[g]enerally,
finding a condition ‘in controversy’ poses no great difficulty. Allegations of
physical or mental injury in the complaint and denial of the injury or the
extent of injury places the condition in controversy [citation].” (Id.
at 341.) A plaintiff's mental condition can also be put “in controversy” during
discovery. As the Reuter court states:
[t]he condition need not be first
raised in the pleadings though. In Harabedian v. Superior Court, supra,
195 Cal.App.2d 26, 30, 15 Cal.Rptr. 420, the defendant had admitted during his
deposition that he had a congenital defect in one eye, and his vision was
blurred. An ophthalmological examination was ordered with defendant objecting.
The court stated the rule, “[i]n determining whether or not there has been an
abuse of discretion it should be borne in mind that the Discovery Act is to be
liberally construed.” (Id. at 341.)
However, the filing of a personal
injury action asking for general damages for pain and suffering does not render
plaintiff’s mental and emotional health at issue. (Davis v. Superior Court
(1992) 7 Cal.App.4th 1008, 1011-1016.) California courts have consistently
recognized that plaintiffs seeking damages for pain and suffering does not ipso
facto place a plaintiff’s mental health in controversy. (Id. at 1017; See
also People v. Garcia (2010) 185 Cal.App.4th 1203 (holding that the victim
did not waive psychotherapist-patient privilege by requesting restitution for
cost of therapy).) The concern with such a broad waiver of plaintiff’s right to
privacy is that “it might effectively deter many psychotherapeutic patients
from instituting any general claim for mental suffering and damage out of fear
of opening up all past communications to discovery.” (In re Lifschutz
(1970) 2 Cal.3d 415, 435.)
Defendant has served more than one
notice of examination when a party may only make a demand for one examination.
Plaintiff also objects on the basis that alleging mental or emotional distress
alone is not enough to justify the ordering of an examination. However,
Plaintiff has also indicated that she would submit to a mental health
examination, so long as she does it remotely. The Court rejects the claim to
conduct the exam remotely.
Accordingly, Defendant’s motion to
compel Plaintiff’s attendance at an independent mental examination with Dr. Hill
is GRANTED. Plaintiff is ordered to attend a mental health examination with Dr.
Hill on January 9, 2023, at 9:00 am or, if all parties and the medical
professional agree, an alternative date may be agreed upon in writing.
____________________
Motion to Compel Plaintiff’s Attendance at Independent
Medical Examination
BACKGROUND
Plaintiff
filed this case on March 26, 2019, as a landlord/tenant habitability matter.
Plaintiff alleges that while she lived at Defendant Esther Chao’s property (dba
as Las Palmas Apartment), Defendant failed to maintain the property which
caused a roof leak and mold in Plaintiff’s unit. Plaintiff’s complaint further
alleges that she suffered respiratory and mental health complaints because of
the roof leak and mold.
As
part of her damages claim, Plaintiff is alleging that she suffers from
exacerbation and escalation of existing allergic rhinitis condition, asthma,
wheezing, sinus, respiratory, and bronchial infections. (Newell Decl., at ¶ 2,
Ex. A.)
On
June 30, 2022, Defendant served Plaintiff with Defendant’s Notice of Physicial
Examination of Plaintiff, with allergist Dr. Alan Szeftel, for an examination
date of July 29, 2022. (Newell Decl., at ¶ 3, Ex. B.) Plaintiff failed to
appear for the scheduled examination. (Newell Decl., at ¶ 7.) Further attempts
to schedule an examination were unsuccessful. An examination was set for
September 30, 2022, and Plaintiff indicated that she would attend if no
pulmonary function test was performed, but Defendant cancelled it after
Plaintiff’s counsel had previously indicated that Plaintiff would not
appearing. (Newell Decl., at ¶ 13, Ex. I.)
A
new examination with a pulmonary function test was scheduled for December 9,
2022. Defendant has indicated that Plaintiff’s counsel told her that Plaintiff
would not be appearing on December 8, 2022. (Reply at p. 3.)
Defendant
filed this motion to compel attendance at a medical examination on October 17,
2022. Defendant’s basis for filing this motion is that a medical examination is
necessary because Plaintiff has placed her physical condition in controversy
and Plaintiff’s objections to the examination are waived for being untimely.
Plaintiff filed her opposition on December 5, 2022. In her opposition,
Plaintiff indicated that she would submit to a medical examination, but she
objects to the pulmonary function test because she is immunocompromised. She
also is requesting that a different expert conduct the examination because she
alleges that her confidential information was disclosed to a provider in
violation of the Protective Order in the case. (Fabella Decl., at ¶ 2, Ex. A.)
In Defendant’s reply, filed on December 8, 2022, Defendant indicates that she
is unaware of any medical records demonstrating Plaintiff’s alleged
immunocompromised status. Further, Defendant contends that a pulmonary function
test is necessary because of Plaintiff’s asthma and other respiratory
complaints alleged in Plaintiff’s complaint. Defendant argues that Plaintiff
once again waived any objection to the December 9 date by failing to notify
Defendant of her intention to not appear until the day before. Finally,
Defendant indicates that Dr. Szeftel has agreed to abide by the protective
order and should be the examining physician.
Defendant
indicates that efforts were made to meet and confer with Plaintiff’s counsel
regarding the medical examination.
LEGAL
STANDARD AND ANALYSIS
Code of Civil Procedure § 2032.220 allows
defendants to demand a physical examination of the plaintiff. This is allowed
so far as the examination does not include “any diagnostic test or procedure
that is painful, protracted, or intrusive” and “the examination is conducted at
a location within 75 miles” of plaintiff's residence. (CCP §
2032.220(a)(1)-(2).) Defendants may make a demand without leave of court after
the defendants have either been served or appeared in the action, whichever is
first. (CCP § 2032.220(b).)
Independent medical examinations are
meant to test the true extent of a plaintiff’s injuries, to ascertain the
medical treatment required, and to measure plaintiff’s ability to function in
the workplace and society. (Vinson v. Superior Ct. (1987) 43 Cal.3d 833,
838.) This purpose supports the notion that both plaintiff and defendants
“should desire an accurate appraisal of the damages suffered” to dispose of the
case fairly and efficiently. (Reuter v. Superior Ct. (1979) 93
Cal.App.3d 332, 338.)
In no case has an independent
medical examination proven to be a more essential discovery mechanism than in
the case where the cause and extent of Plaintiff’s injuries are in question. (Vinson
v. Superior Ct., at 838.) Significantly, “[t]he choice of the examining
physician generally belongs to the defendant…, although the plaintiff has a
right to the presence of counsel during the examination.” (Pratt v. Union
Pac. R.R. Co. (2008) 168 Cal.App.4th 165, 181 (internal citation omitted).)
All objections to a Notice of
Independent Physical Examination must be made within 20 days of the receipt of
the Notice; otherwise, the objections are waived. (CCP § 2032.240(a).)
Here, Defendant properly served
Plaintiff with a demand for a physical examination. A physical examination,
including a pulmonary function test, are necessary in this case to determine
the extent of Plaintiff’s alleged injuries, particularly the respiratory
injuries that she is alleging due to the alleged leak and subsequent mold in
her unit. Further, Plaintiff failed to make a timely objection to the medical
examination, so any objection that she now has is waived, and she also has
provided no evidence of her alleged immunocompromised status.
Accordingly, Defendant’s motion to
compel Plaintiff’s attendance at an independent medical examination with Dr.
Szeftel is GRANTED. Plaintiff is ordered to attend a medical examination within
45 days of this order, or as Dr. Szeftel’s schedule allows.