Judge: Kerry Bensinger, Case: 21STCV09514, Date: 2023-02-06 Tentative Ruling

Case Number: 21STCV09514    Hearing Date: February 6, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On March 10, 2021, plaintiff L. Hall, a minor by and through her Guardian ad Litem Barbara Crouch Hall (“Plaintiff”) filed this action against defendants Los Angeles Unified School District (“LAUSD”), Joseph Leconte Middle School, County of Los Angeles, City of Los Angeles, and California Department of Education arising from an incident where Plaintiff was attacked by a group of students during lunch and at school on February 14, 2020. It is further alleged that the attack occurred while the school was short staffed and did not have adequate supervision in place in the lunch area.

The Complaint alleges the following causes of action: (1) negligence pursuant to Government Code § 815.2 and Education Code § 201; and (2) premise liability pursuant to Government Code § 815.2 and Education Code § 201.

On October 15, 2021, LAUSD filed its answer to the Complaint.

On December 7, 2022, LAUSD filed the instant motion to compel the neuropsychological examination of Plaintiff.  

As of February 1, 2023, no opposition has been filed.

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 of Civ. Proc., § 2032.220, subd. (a).)  A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code of Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code of Civ. Proc., § 2032.220, subd. (d)).

“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. (Code of Civ. Proc., § 2032.310(a).) 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(b).) The Court shall grant the motion only for good cause shown.  (Code Civ. Proc., § 2032.310(a).)

III.        DISCUSSION

As a preliminary matter, the Court finds that LAUSD satisfied the meet and confer requirement under Code of Civil Procedure § 2032.310(b). (Tate Decl. ¶ 10, Exh. 9.) Also, the statutory prerequisites under Code of Civil Procedure § 2032.320(d) have been met. (Garcia Decl. ¶¶ 7-8, Exh. D.)

A.   Merits

LAUSD seeks leave of court to demand Plaintiff’s neuropsychological examination because Plaintiff has alleged suffering from “psychological trauma” in connection with the February 14, 2020 incident, and following Plaintiff’s physical examination, LAUSD’ neurologist Dr. Edwin C. Amos, M.D. recommended further testing. (See Notice of Motion at pg. 2.) The proposed examination would be conducted by board certified Clinical Neuropsychologist Anita Herrera Hamilton, Ph.D on February 13, 2023 at Hamilton Neurocog Performance, 3020 Old Ranch Parkway, Suite #328, Seal Beach, California 90740. (Ibid.) “[T]he neuropsychological examination will also include a battery of psychodiagnostic tests for a comprehensive evaluation involving an adolescent with a history of concussion and/or mood/behavioral difficulties, and procedures that are not painful, protracted, or intrusive.” (Ibid.)

Here, LAUSD initially served a demand for physical examination on Plaintiff on July 8, 2022, which was to be conducted by Dr. Edwin C. Amos (“Dr. Amos”). (Motion at pg. 3; Garcia Decl. ¶ 4, Exh. A.) Prior to the examination, LAUSD indicated that it would seek a neuropsychological examination depending on the results of the physical examination. (Motion at pg. 3; Garcia Decl. ¶ 5, Exh. B.) Following the July 26, 2022 physical examination, Dr. Amos issued a report and determined that neuropsychological testing would be necessary to evaluate Plaintiff’s cognitive and emotional complaints. (Motion at pp. 3-4; Garcia Decl. ¶ 6, Exh. C.) During a discussion on the need for a neuropsychological examination, Plaintiff’s counsel indicated that Plaintiff was involved in a separate alteration at a different high school and that Plaintiff would no longer seek recovery for future psychological injury or treatment because Plaintiff’s anxiety and depression associated with the subject incident in this action have subsided. (Motion at pg. 4; Garcia Decl. ¶ 7-8, Exh. D.)

Defendant argues there is good cause to compel Plaintiff to submit to neuropsychological examination for the following reasons. First, Plaintiff has placed her mental condition at issue because she has alleged the subject incident caused her “psychological trauma.” (Motion at pg. 8; Compl. ¶ 28.) Second, the physical examination conducted by Dr. Amos did not uncover any physiological basis for Plaintiff’s claimed cognitive and emotional injuries. (Motion at pg. 8; Garcia Decl., Exh. C at pg. 5.) Third, even if Plaintiff were to forego recovery of ongoing depression and anxiety related to the incident, LAUSD contends that it does not resolve all of Plaintiff’s neuropsychological injuries, and it points out that Plaintiff would not stipulate to a waiver of claims of any neuropsychological or cognitive injuries as well as mental or emotional distress. (Motion at pp. 4-5.)

In this instance, the Court finds that there is good cause in granting LAUSD’s motion. It is undisputed that Plaintiff has placed her mental condition at issue. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840–841 [finding good cause to compel a plaintiff to submit to a psychiatric examination where the plaintiff complained of fear, anxiety, mental anguish, and severe depression].) Considering that Plaintiff complains of episodic anxiety, chronic daily headaches, and disordered sleep and it is believed that Plaintiff’s cognitive and emotional complaints do not have a physiological explanation, LAUSD is entitled to understand the extent and cause of these injuries in order to adequately prepare a defense to Plaintiff’s claims and evaluate Plaintiff’s damages as well as their potential liability. (See Vinson, supra, 43 Cal.3d at 840-841.) Moreover,  Plaintiff would not stipulate to a waiver of claims of any neuropsychological or cognitive injuries as well as mental or emotional distress.  Because the proposed tests are not painful, protracted or intrusive and they will be conducted by a doctor with over 15 years in field of pediatric psychology, the Court further finds that Plaintiff would not be inconvenienced by submitting to another medical examination.

Accordingly, LAUSD’s motion is GRANTED.

IV.         CONCLUSION

Defendant Los Angeles Unified School District’s Motion to Compel Neuropsychological Examination of Plaintiff L. Hall is GRANTED. The parties are instructed to meet and confer for purposes of determining a mutually agreeable date to conduct the neuropsychological examination.

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 6th day of February 2023