Judge: Glenn R. Salter, Case: 21-1222860, Date: 2022-12-01 Tentative Ruling

The motion of the defendants to compel an independent mental examination of the plaintiff is DENIED, subject to the caveat below.

Counsel for the plaintiff submitted a stipulation, prior to the filing of the defendants’ motion and as part of counsel’s declaration in opposition to the motion, that complies with the requirements of Code of Civil Procedure section 2032.320, subdivision (c).

Under subdivision (b) of that section, “[i]f a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.”  (Emphasis added.)

No case has been found that defines what “extraordinary circumstances” are.  Nor have the parties provided the court with any legislative history on the subject.  However, a fair reading of that provision suggests it would come into play only where there are external manifestations or other readily visible facts that would be evident at trial and that could mislead a jury as to the extent of the plaintiff’s mental injuries.  The defendants have made no such showing here and thus have failed to show this, or any other, exceptional circumstance.

Caveat:  The court’s only concern is that the statute speaks to a stipulation of a “party.”  Given that the stipulation serves to give up a claim for injuries, it would seem that any stipulation under subdivision (c) must be signed by the party, not just counsel, to be effective.

The plaintiff shall file with the court, a stipulation executed by the plaintiff that complies with Code of Civil Procedure section 2032.320, subdivision (c).  Failure to provide such a signed stipulation will result in the granting of the motion pursuant to subdivision (a) of that section.

The plaintiff shall give notice.