Judge: Kerry Bensinger, Case: 20STCV47281, Date: 2023-02-17 Tentative Ruling

Case Number: 20STCV47281    Hearing Date: February 17, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On December 10, 2020, Natalie L. Alpakli (“Plaintiff”) filed this action against Christopher Thomas Lamb and Alcorn Fence Co. (collectively, “Defendants”).  Plaintiff alleges motor vehicle negligence arising from an automobile collision that occurred on or about December 20, 2018.  

On November 17, 2022, Defendants filed a motion to compel Plaintiff to submit to Independent Medical Examination (IME) for a psychiatric examination pursuant to California Code of Civil Procedure section 2032.220 because Plaintiff has alleged experiencing post-traumatic stress disorder (PTSD) and severe emotional anxiety and distress as a result of the December 20, 2018 incident.  The motion is unopposed.

II.          LEGAL STANDARD

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee.  (Code Civ. Proc., § 2032.220, subd. (a).)  Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court.  (Code Civ. Proc., § 2032.310, subd. (a).) 

A mental examination shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.  (Code Civ. Proc., § 2032.020, subd. (c)(1).)  “The only statutorily authorized justification for ordering a mental examination is that the ‘mental condition’ of the examinee is ‘in controversy.’”  (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1886.)  In the absence of an allegation that plaintiff has any current mental injury as a result of defendant’s alleged conduct, her present mental condition is not directly relevant.  (Ibid.)  Further, “[m]ental examinations are not authorized for the purpose of testing a person’s ‘credibility.’”  (Ibid.)

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., § 2032.310, subd. (b).)  The Court shall grant the motion only for good cause shown.  (Code Civ. Proc., § 2032.310, subd. (a).)  “The way to describe these ‘diagnostic tests and procedures’–fully and in detail—is to list them by name.”  (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)

III.        DISCUSSION

Defendants represent that Plaintiff has testified and set forth in her discovery that she is claiming severe emotional distress and PTSD as a result of the automobile accident.  (Hall Decl., ¶ 16.)  Pursuant to Plaintiff’s testimony and discovery responses, Defendants served a demand for a psychiatric IME with Dr. Sarah Mourra for November 14, 2022.  (Hall Decl., ¶ 9, Ex. B.)  Dr. Mourra is a licensed psychiatrist.  (Hall Decl., Ex. E.)  Plaintiff objected to appearing at Plaintiff’s psychiatric IME because Plaintiff had already presented herself to two physical examinations and Defendants had not obtained a court order to compel her appearance at the psychiatric examination.  (Hall Decl., Ex. C.)  

To resolve the issue prior to filing the instant motion, defendants’ counsel spoke to plaintiff’s counsel by phone during which plaintiff’s counsel would not agree to produce Plaintiff for psychiatric examination nor agree to forego the claims for PTSD or severe emotional distress.  (Hall Decl., ¶ 14.)  Defendants now seek an order compelling Plaintiff to submit to the psychiatric examination with Dr. Mourra on February 27, 2023.

Defendants argue there is good cause to compel Plaintiff to submit to a psychiatric IME because Plaintiff has put her mental condition in controversy, and it is likely that Plaintiff will call a psychiatrist as a retained or non-retained expert at trial to prove up Plaintiff’s alleged injuries of PTSD and severe anxiety/emotional distress. 

The Court finds Defendants have shown good cause to warrant a psychiatric IME here.  Plaintiff is claiming ongoing PTSD and severe anxiety/emotional distress and has refused to forego those claims.  Therefore, Defendants are entitled to an order compelling Plaintiff to submit to a psychiatric IME with Dr. Sarah Mourra on February 27, 2023, at 10:30 a.m., at the offices of Dr. Sarah Mourra, located at 8631 W. 3rd Street, Suite 100, Los Angeles, CA 90048.

Defendants also request terminating sanctions if Plaintiff fails to attend the psychiatric examination with Dr. Mourra.  If a party is required to submit to a physical or mental examination under Articles 2 (commencing with Section 2032.210) or 3 (commencing with Section 2032.310), or under Section 2016.030, but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010).  (Code Civ. Proc., § 2032.410.)  The Court finds that imposition of any sanctions at this time is premature.  Accordingly, Defendants’ request for terminating sanctions in the event Plaintiff does not attend the psychiatric IME with Dr. Mourra is denied.

IV.         CONCLUSION

The motion is granted. 

Plaintiff is ordered to submit to Plaintiff’s Independent Medical Examination for a psychiatric examination with Dr. Sarah Mourra on February 27, 2023, at 10:30 a.m., at the offices of Dr. Sarah Mourra, located at 8631 W. 3rd Street, Suite 100, Los Angeles, CA, 90048. 

Defendants’ request for terminating sanctions is denied without prejudice.

Moving party to give notice.

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.

                                                                 Dated this 17th day of February 2023