Judge: Jill Feeney, Case: 20STCV47700, Date: 2022-10-04 Tentative Ruling
Case Number: 20STCV47700 Hearing Date: October 4, 2022 Dept: 30
Department 30, Spring Street Courthouse
October 4, 2022
20STCV47700
Motion for order compelling Plaintiff to submit to a second mental examination filed by Defendant Alexandra Gabrielle Sedaker
DECISION
The motion is granted with respect to the examination.
Plaintiff is ordered to appear for the completion of her mental examination on November 3, 2022 at 9:00 a.m. at the offices of Dr. Hinkin.
The motion is denied with respect to the request that Plaintiff pay the costs of travel.
Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
On December 14, 2020, Kathryn Williams (“Plaintiff”) initiated the present action by filing a Complaint against Alexandra Gabrielle Sedaker (“Defendant”). Plaintiff's Complaint alleges a single cause of action for Negligence.
On August 10, 2022, Defendant Alexandra Gabrielle Sedaker filed the instant motion to compel Plaintiff’s second mental examination.
Summary
Moving Arguments
Defendant argues there is good cause for a second mental examination of Plaintiff because the previous examination could not be completed due to Plaintiff’s severely disruptive behavior.
Opposition Arguments
Plaintiff argues that Defendant’s motion is procedurally defective because he has not sought the Court’s leave to conduct another mental examination on Plaintiff. Plaintiff also argues that there is no good cause to force Plaintiff to fly to California from Virginia for a mental examination. Lastly, Plaintiff argues that it was Defendant’s expert’s own inability to control Plaintiff that disrupted the first medical examination. Plaintiff also seeks sanctions.
Reply Arguments
Defendant argues that the instant motion is an attempt to seek leave of Court to conduct another medical examination. Defendant also argues that there is good cause for the medical examination because the completed mental examination is necessary to place Defendant on equal evidentiary footing as Plaintiff. Defendant maintains that its expert, Dr. Hickman, conducted his examination professionally.
Legal Standard
“Unless otherwise limited by order of the court …, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action …, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)
Where any party seeks to obtain discovery by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).) The Court shall grant the motion only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a).)
Discussion
Meet and Confer Requirement
A motion for an examination shall be accompanied by a meet and confer declaration. (Code Civ. Proc., section 2032.310, subd. (b).)
Defense counsel attests that before filing this motion, he met and conferred with Plaintiff’s counsel via email in June 2022 and could not come to an agreement regarding Plaintiff’s mental examination. (Madigan Decl., ¶18.) Defendant satisfied its meet and confer requirement.
Specifications for the Time, Place, Manner, Conditions, Scope, and Nature of the Examination
A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination and shall be accompanied by a meet and confer declaration. (Code Civ. Proc., section 2032.310, subd. (b).)
Defendant specifies the time and place of the proposed examination. It will take place on November 3, 2022 (beginning at 9:00 a.m.) at 921 Westwood Blvd., Ste. 208, Los Angeles, CA 90024. (Motion, p. 2.) The examination will take 2.5 hours exclusive of breaks. Breaks for personal comfort or necessity may be taken as needed.
The scope of the examination will include commonly used tests including the B-Test, Beck Anxiety Inventory (BAI), Beck Depression Inventory (BDI), Behavioral Rating Inventory of Executive Function, Boston Naming Test, Brief Test of Attention, BVMT-R, CVLT-II, COWAT, CPT-II, DKEFS, DAPS, Grooved Pegboard, Hand Dynamometer, HVOT, Frontal Systems Behavioral Scale, MCMI-III, MMPI-2/RF, Rey Complex Figure Test, Rey 15 Item Test, Stroop Task, SIMS, SCL90-R, TOMM, TSI, Trail Making Test, VSVT, WAIS- III/IV, WASI, WMS– III/IV, WTAR, WRATIII/IV, WCST, and Word Memory Test. (Motion, p. 3.)
The identity and specialty of the examiner are also provided. Dr. Charles Hinkin is a psychologist who holds a license in California. His qualifications are not at issue.
Good Cause
Defendant argues Plaintiff has placed her mental condition at issue by alleging in her written discovery responses that she suffers sleep disturbances, mood disturbances, memory issues, difficulty concentrating, and lack of visual focus. (Motion, Exhibits B-D.) Defendant also included a medical report showing Plaintiff was diagnosed with stress and anxiety. It is undisputed that Plaintiff has been receiving mental health treatment for quite some time.
Plaintiff agreed to the examination in the first instance. This motion arises because Plaintiff, as documented in the declaration submitted by Dr. Hinkin, was not, to say the least, cooperative during that examination. It is for this reason that Dr. Hinkin requires a few more hours to complete the testing.
Plaintiff also agreed to have Dr. Hinkin complete his testing but wanted it done remotely.
Under these circumstances, there is good cause for the completion of the mental examination that was initially agreed to by Plaintiff.
Travel Costs
Defendant requests Plaintiff, who resides in Virginia, pay her costs of travel because Defendant initially paid for her costs of travel and it is Plaintiff’s fault that the initial examination as not completed.
The Court declines to order Plaintiff to pay travel costs. Plaintiff agreed to appear remotely and Defendant has not explained why the additional testing could not be completed remotely by Dr. Hinkin with the help of a local psychologist who resides near Plaintiff. The Court’s decision not to impose costs is also influenced by the fact that Plaintiff previously participated in multiple examinations during one trip as opposed to insisting that Defendant pay for more than one trip. That said, the Court does not expect any further disruptions with respect to the examination and will order costs to be borne by Plaintiff if there are any further issues with respect to Plaintiff’s participation in the examination.
