Judge Jill Feeney, Case 20STCV02388 2023-03-06 Tentative Ruling

This action was commenced on January 21, 2020. This is action is based on a car accident that occurred on May 14, 2019. Plaintiffs to this action are Hugo Rodgriguez-Benitez and Angel Alejandro Rodriguez; the defendants are Kris Kim and BNA Textile, Inc.

Defendant moves for the Court to reconsider the January 12, 2023 ruling denying Defendant’s motion for leave to conduct a second medical examination. Defendant argues that Defendant received new records on January 17, 2023 that Plaintiff underwent psychological evaluation in December 2022. Defendant alleges that these new records show Defendant will be prejudiced without having the opportunity to perform a psychological evaluation.

Plaintiff argues that Defendant’s proposed new evidence fails to meet statutory requirements because the new evidence fails to justify reconsideration. Plaintiff alleges that the Court was already aware of and addressed Plaintiff’s psychological examination and that Plaintiff is still not bringing any mental health claims in this case. Plaintiff also requests sanctions against Defendant under Code Civ. Proc., sections 2023.010 and 2023.030.

“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.

(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

A motion for reconsideration under Section 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) However, the burden under Section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (Id.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].) A disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Newly produced documents which had been requested but not produced at the time of the earlier hearing properly constitute new of different facts not previously considered. (Hollister v. Benzl (1999) 71 CA4th 582, 585.)

Although parties may move for reconsideration only as authorized by Code of Civil Procedure section 1008, the statute “do[es] not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel¿(2005) 35 Cal.4th 1094, 1107.)

Defendant moves for reconsideration on the grounds that Defendant obtained new evidence through subpoena that Plaintiff received a psychological evaluation on December 15, 2022 to determine his eligibility for a spinal cord stimulator. Plaintiff argues that this fact was already known to all parties, including the Court, and that it does not justify reconsideration.

“The parties dispute whether Plaintiff has placed his psychological or mental health condition at issue. The Court finds that he has not. Defendant does not dispute that there are no claims for mental or emotional damages in Plaintiff’s Complaint. Defendant argues that Plaintiff’s mental health is at issue because Plaintiff’s medical records show that eligibility for the spinal cord stimulator depends on passing a psychiatric evaluation. (Boden Decl., ¶4.) However, this does not mean Plaintiff’s mental health is disputed in this litigation. It appears that a psychological examination is a prerequisite for obtaining a spinal cord stimulator. Thus, it has no bearing on whether the stimulator is necessary.

The parties next dispute whether there is good cause for a second IME. Defendant argues that the IME is necessary to determine Plaintiff’s damages by determining whether the stimulator is necessary to treat Plaintiff’s injuries. Although Dr. Saint Martin states that he can determine if the spinal cord stimulator is reasonable or necessary, the proposed tests appear to be psychological tests that go to diagnosing Plaintiff’s psychological impairments which are not the subject of this litigation. Defendant offers no explanation as to why Plaintiff’s earlier physical examination was not sufficient to determine the extent of Plaintiff’s spinal injuries. Even if additional medical examination is necessary to determine the necessity of a spinal cord stimulator, Defendant fails to explain how a psychological evaluation would reveal if injuries to Plaintiff’s spine necessitated the implant.”

If as of this moment Plaintiff had the spinal cord stimulator implanted, Defendant would not have the right to have its own expert conduct a psychological screening to see if in his or her opinion Plaintiff should have qualified to receive the spinal cord stimulator that Plaintiff already has.

Here, Plaintiff has passed a psychological screening that has cleared him to receive the stimulator and has a physician who is willing to implant the device on this basis. At this point, the only relevance of a psychological screening performed by defendant’s expert that will presumably come out the other way as to Plaintiff’s eligibility would be for the purpose of attempting to demonstrate that both the screening psychologist and the doctor willing to perform the procedure are essentially frauds who either have no intention of Plaintiff ever receiving the stimulator or are unethical and willing to have Plaintiff undergo a procedure which he should not have. Therefore, Defendant would argue that Plaintiff is not reasonably certain to need the procedure in the future as a way and the cost of the spinal stimulator should not be consider in calculating future medical damages.

Mental examinations may be obtained of a party whose mental condition is placed in controversy. (Code Civ. Proc., § 2032.020(a).) Unless the parties agree, leave of Court is required to obtain a mental examination. (Code Civ. Proc. § 3032.310(a).) A motion shall be granted only for good cause (Code Civ. Proc., §2032.320(a)), which generally requires (1) relevancy and (2) specific facts justifying discovery. (Weil & Brown, California Practice Guide, Civil Procedure Before Trial, Chap. 8, section 8:1557, p. 81-16.)

A plaintiff may stipulate that no claim is being made for mental or emotional distress over and above what is usually associated with the physical injuries claimed and no expert testimony regarding this usual mental distress will be offered at trial. (Code Civ. Proc., § 2032.320(c).) Where plaintiff offers a stipulation, the Court cannot order a mental examination “except on a showing of exceptional circumstances.” (Code Civ. Proc., § 2032.320(b).) Exceptional circumstances might be based on plaintiff’s irrational behavior or a physical appearance suggesting mental illness. (Weil & Brown, supra, at section 8:1568, pg. 81-20.)

Here, Plaintiff has not placed his mental condition in controversy because Plaintiff has agreed that no claim is being made for mental or emotional distress over and above the norm and that no expert testimony regarding his usual mental distress will be offered at trial.

So the issue here is whether Defendant has demonstrated the existence of exceptional circumstance warranting a mental examination. Defendant has not cited to any authority holding that the situation here or even an analogous situation constitutes an exceptional circumstance. Moreover, Defendant has ample ammunition to attack the stimulator as a future medical cost (assuming that it is not implanted prior to trial). Among other things, Defendant may question both the psychologist who cleared the Plaintiff and the medical doctor who found Defendant medically eligible for the stimulator about Plaintiff’s psychological issues (which Defendant has indicated that they have evidence about) about his suitability for the procedure. Defendant may call its own experts to opine on these issues as well. Moreover, Defendant may cross-examine Plaintiff about his issues and as to why he has not gotten the procedure yet.