Judge Kerry Bensinger, Case Number: 20STCV23373, Date: 2023-08-03 Tentative Ruling

Judge: Kerry Bensinger, Case: 20STCV23373, Date: 2023-08-03 Tentative Ruling

Case Number: 20STCV23373 Hearing Date: August 3, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: August 3, 2023 TRIAL DATE: September 25, 2023

CASE: Blanca Estela Hernandez v. Alireza Varstehpour, et al.

CASE NO.: 20STCV23373

MOTION TO COMPEL NEUROPSYCHOLOGICAL EXAMINATION

MOVING PARTY: Defendants Alireza Varastehpour and 523 Avondale, LLC

RESPONDING PARTY: Plaintiff Blanca Estela Hernandez

I. BACKGROUND

On June 19, 2020, Plaintiff, Blanca Estela Hernandez, filed this action against Defendants, Alireza Varastehpour (erroneously sued as “Alireza Varstehpour”) and 523 Avondale, LLC, for injuries Plaintiff allegedly suffered when a portion of the ceiling in her kitchen collapsed and fell on her head. Those injuries caused confusion, difficulty with concentration, memory loss, and difficulty with word-finding.

On July 10, 2023, Defendants filed this motion to compel Plaintiff to appear for a neuropsychological examination. Defendants do not seek sanctions.

Plaintiff opposes and Defendants reply.

Plaintiff has previously submitted to two independent medical examinations.

II. LEGAL STANDARDS

“Nowhere does the Legislature specifically limit the number of available examinations, either mental or physical. The authoritative discovery commentators agree that multiple defense examinations are permitted on the necessary showing of good cause.” (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) A showing of good cause requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) “The requirement of a court order following a showing of good cause is doubtless designed to protect an examinee’s privacy interest by preventing an examination from becoming an annoying fishing expedition.” (Ibid.)

III. DISCUSSION

Defendants argue good cause exists to compel Plaintiff to appear for a third examination for neuropsychological testing because Plaintiff has placed in issue her injuries that can only be evaluated by a neuropsychologist. In support, Defendants point to Plaintiff’s responses to Form Interrogatories that list confusion, problems with concentration, memory loss, and difficulty finding words among her claimed injuries, (see Responses to Form Interrogatories Nos. 6.2 and 6.3, Wasserman Decl., Ex. A), and that Plaintiff’s own treating neurologist recommended that Plaintiff see a neuropsychologist to treat her continuing complaints (see Response to Form Interrogatory No. 6.7). Defendants further argue that former counsel for Plaintiff stated that Plaintiff was agreeable to attend any IME related to her claimed injuries.

Plaintiff contends the motion should be denied because: (1) Plaintiff has already submitted to two medical examinations, (2) Plaintiff never agreed to be examined by a neuropsychologist and has no set appointments with a neuropsychologist, and (3) Plaintiff’s counsel never stipulated for Plaintiff to be examined by a neuropsychologist.

The Court is not persuaded by Plaintiff’s contentions. An examination will be limited to whatever condition is “in controversy” in the action. (Code Civ. Proc., § 2032.020, subd. (a).) Here, by claiming confusion, problems with concentration, memory loss, and difficulty finding words among her injuries, Plaintiff has placed her neuropsychological condition in controversy, whether or not she has sought treatment for the condition and despite having submitted to two previous medical examinations with an orthopedic surgeon and neurologist. Plaintiff fails to dispute Defendants’ argument that a neurologist cannot properly assess the impact of the foregoing injuries. Nor does Plaintiff’s contention that counsel never stipulated for Plaintiff to be examined by neuropsychologist change the outcome.

The Court is cognizant of the intrusiveness of a third medical examination. However, absent evidence that a neurologist may sufficiently assess Plaintiff’s claimed injuries noted herein, or Plaintiff’s evidence that Plaintiff’s claimed injuries are no longer at issue, Defendants are entitled to an order compelling Plaintiff’s appearance at a neuropsychological examination.

IV. CONCLUSION

The motion to compel Plaintiff’s neuropsychological examination is GRANTED. Plaintiff is ordered to appear for a neuropsychological examination by Po-Hoang Lu, Psy.D. on August 28, 2023, at 10:00 a.m.

Moving party to give notice.

Dated: August 3, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.