Judge: John J. Kralik, Case: 23BBCV01727, Date: 2024-10-11 Tentative Ruling

Case Number: 23BBCV01727    Hearing Date: October 11, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Jaron Onorati (“Plaintiff”) alleges that on August 1, 2021, she was lawfully walking on Vineland Avenue near the cross street of Burbank Boulvard in North Hollywood when Defendant Vijaya L. Lagudu unexpectedly lost control of his vehicle and struck Plaintiff. 

The complaint, filed July 28, 2023, alleges a single cause of action for negligence. 

On February 14, 2024, Plaintiff named Thanmye Lagudu as Doe 1.

B.     Motion on Calendar

On August 16, 2024, Defendants Vijaya and Thanmye Lagudu (“Defendants”) filed a motion for leave of Court to conduct the neuropsychological examination and assessment of Plaintiff pursuant to CCP § 2032.310. 

On September 30, 2024, Plaintiff filed an opposition brief.

LEGAL STANDARD

            CCP § 2032.310 states:

(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.

(b) 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 motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.

(CCP § 2032.310.) 

CCP § 2032.320 states in relevant part:

(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.

(b) If 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.

(c) A stipulation by a party under this subdivision shall include both of the following:

(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.

(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.

(d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.

(CCP § 2032.320.) 

DISCUSSION

            Defendants move to compel the neuropsychological examination and assessment of Plaintiff.  They seek to have the examination be conducted by neuropsychology specialist, Philip K. Stenquist, PhD, ABCN, and for it to take place at 9001 Wilshire Boulevard, Suite 204, Beverly Hills, CA 90211 on November 19, 2024 at 9:00 a.m.  (Cadena Decl., Ex. C [Dr. Stenquist’s CV].)  Defendants anticipate the examination to include a detailed history and interview (2-3 hours), neuropsychological testing (3-4 hours), and additional time to score and prepare a comprehensive written report (1-2 hours), with breaks.  They state that the assessment will examine Plaintiff’s “intellectual functioning, language processing skills, perceptual skills, higher motor functions, attention and concentration skills, judgment, reasoning skills, mental flexibility, memory, constructional skills, abstract thinking and conceptualization skills, problem solving skills, behavioral regulation, personality alterations, and emotional functioning” and that none of the tests/procedures will be painful, protected, or intrusive.  (Mot. at pp.5-6.) 

            Defendants argue that there is good cause to grant the motion because Plaintiff stated in his special interrogatory responses that: “Plaintiff continued to suffer from headaches and dizziness. Plaintiff consulted with Dr. Madhu Katakia, a neurologist with a final impression of traumatic brain injury, cerebral concussion, headache memory impairment, history of ringing in the ear, probably a manifestation of post-concussion syndrome, to rule out cerebral injury and cervical and lumbosacral sprain. [¶] As such, considering the above-mentioned injury producing incident, the injuries caused by said subject incident, and the assessments, diagnoses, treatments and other related medical care that followed, Plaintiff alleges traumatic brain injury.”  (Cadena Decl., Ex. B [Pl.’s response to SROG No. 15, 7:17-23].)  At his deposition, Plaintiff testified that he experienced ringing in his ears, headaches, dizzy spells, and memory loss when he first saw the neurologist on February 7, 2022.  (Cadena Decl., Ex. A [Pl.’s Depo. at 38:16-23, 48:17-23, and 48:24-49:8].)  Thus, Defendants argue that they should be able to conduct Plaintiff’s mental examination to investigate Plaintiff’s injuries and damages.  Defendants also argue that Plaintiff has been examined by his own neurologist Dr. Katakia, whose final impressions were TBI, among other conditions.  (Mot. at p.4.)  They argue that Dr. Katakia referred Plaintiff to neuropsychologist Lawrence G. Lyons, PhD for memory impairment and that Dr. Lyons performed a comprehensive evaluation of Plaintiff’s complaint of memory loss in his August 22, 2022 report.  (Id.) 

            In opposition, Plaintiff argues that Defendants have not established good cause to justify an examination, the examination is unnecessary as the type of tests anticipated would not explain his symptoms, and he would experience burden and harassment if he must submit to a 6–7-hour examination.   

            The Court finds that Defendants have established good cause to warrant granting this motion and compelling Plaintiff to submit to a neuropsychological examination and assessment.  As indicated by Plaintiff’s discovery responses, Plaintiff is now claiming TBI and he testified at his deposition that he has experienced memory loss, ringing in his ears, headaches, and other conditions following the subject incident.  Plaintiff also does not deny that he was seen by his own neuropsychologist and that he was evaluated for the purposes of this litigation.  As the plaintiff in this action, Plaintiff is expected to experience some burden in the litigation, such as submitting to his deposition and submitting to defense medical examinations, particularly if Plaintiff is claiming damages as a result of the subject incident.  Thus, the Court grants the motion to compel Plaintiff to attend a defense neuropsychological examination.  

CONCLUSION AND ORDER

            Defendants Vijaya and Thanmye Lagudu’s motion to compel Plaintiff to submit to a neuropsychological examination and assessment is granted.  The examination shall be conducted by Philip K. Stenquist, PhD, ABCN, and for it to take place at 9001 Wilshire Boulevard, Suite 204, Beverly Hills, CA 90211 on November 19, 2024 at 9:00 a.m.  If this is not a mutually agreeable date and time, the parties shall be ordered to meet and confer and find a mutually agreeable date and time within 60 days of this order. 

Defendants shall provide notice of this order.

DATED:  October 11, 2024                                                    ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court