Judge: Elaine W. Mandel, Case: 23SMCV02067, Date: 2025-06-03 Tentative Ruling

Case Number: 23SMCV02067    Hearing Date: June 3, 2025    Dept: P

Tentative Ruling

Rahbar v. Wong, Case no. 23SMCV02067

Hearing date June 3, 2025

Defendants’ Motion for Leave to Conduct Independent Neuropsychological Exam

Plaintiff Rahbar sues defendants DW Investments, LLC and Wong for injuries sustained when he slipped and fell, striking his head. Defendants moves for leave to conduct a neuropsychological exam.

Pursuant to Code of Civil Procedure §2032.310(a), any party that desires to obtain a mental examination shall obtain leave of court. Code of Civil Procedure §2032.320(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 examiner must provide a list of diagnostic tests and procedures to be used. Carpenter v. Superior Court of Alameda (Yamaha Motor Corporation, USA) (2006) 141 Cal.App.4th 249.

Plaintiff argues defendants failed to show good cause. Per plaintiff’s response to form interrogatory 6.2, he suffers from “[r]ecurrent traumatic brain injury with persistent impairment in brain processing," "postconcussive syndrome," and "ongoing post traumatic depression and anxiety." Decl. Heimler exh. A. As plaintiff alleged these injuries, his neuropsychological condition is at issue.

Plaintiff argues defendants failed to provide a list of examinations per §2032.320(b). Defendants attached the proposed terms of the examination, including testing to be performed, how it will be handled, persons permitted to attend, the location, and its process and procedures. See Mtn. exh. C. Defendants complied with §2032.320(b).

Plaintiff argues the proposed examiner, Dr. Ho, is unqualified, as he is not a neuropsychologist and only has experience “conducting ‘a variety of assessments including psychodiagnostic, neuropsychological, and psychoeducational testing used in forensic and treatment settings.’” Opp. 5: 3-5. Dr. Ho has been a doctor of clinical psychology since 2007, conducting neuropsychological evaluations since 2008. Decl. Heimler exh. B. Dr. Ho is not unqualified.

Plaintiff argues the length of examination, 14 hours over two days, is excessive. Defendants argue the injuries are such that extensive testing is necessary. Defendants point to plaintiff’s alleged mental health history and post-fall treatment history. Reply. exh. F. The comprehensive testing as requested is appropriate. See Newman v. San Joaquin Delta Cmty. Coll. Dist. (E.D. Cal. 2011) 272 F.R.D. 505.

Plaintiff’s counsel requests access to raw testing data. Defendants argue Dr. Ho has a legal and ethical obligation not to freely disclose raw testing data but offers terms by which the data can be shared with plaintiff’s experts. See Decl. Heimler exh. C, parts 12, 18. Per the terms, under a protective order defendants will share the raw data with plaintiff’s retained experts, with any filings to be made under seal. The court finds these terms appropriate.

GRANTED as modified above. Within 30 days of the examination, defendants’ examiner will provide to plaintiff's expert all testing and raw data pursuant to the protective order.