Judge Lee S. Arian, Case Number: 21STCV23305, Date: 2024-01-23 Tentative Ruling

Judge: Lee S. Arian, Case: 21STCV23305, Date: 2024-01-23 Tentative Ruling

Case Number: 21STCV23305 Hearing Date: February 13, 2024 Dept: 27

Tentative Ruling

Judge Lee Arian, Department 27

HEARING DATE: February 13, 2024 TRIAL DATE: February 29, 2024

CASE: Charlotte Jester v. Centimark Corporation, et al.

CASE NO.: 21STCV23305

MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATION OF PLAINTIFF AND MOTION TO CONINUE

MOVING PARTY: Defendant Centimark Corporation

RESPONDING PARTY: Plaintiff Charlotte Jester

MOTION FOR IME

I. INTRODUCTION

Plaintiff Charlotte Jester (“Plaintiff”) initiated this action on June 22, 2021, against defendants CentiMark Corporation (“Defendant”), GranCare Autumn Hills LLC and Does 1 to 50 (collectively “Defendant”) alleging causes of action for general negligence and premises liability. Plaintiff alleges that a metal propane tank fell onto her while Defendants performed repair work on a nearby roof, causing serious injuries.

On November 15, 2023, Defendant moved for an order requiring Plaintiff to submit to a mental examination. Plaintiff opposed, and Defendant replied.

II. LEGAL STANDARD

Mental examinations may be obtained of a party whose mental condition is placed in controversy. (Code Civ. Proc. § 2032.020(a).)

A demand for a mental examination 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 physician who will perform the examination. (Code Civ. Proc. § 2032.220(c).)

Code of Civil Procedure section 2032.230 provides that a plaintiff to whom a demand for a physical examination is directed shall respond within 20 days after service with a written statement that she will comply with the demand as stated, comply with the demand as specifically modified by her, or refuse, for reasons specified in the response, to submit to the demanded examination. The response must be served on the defendant making the demand and all other parties who have appeared in the action.

Code of Civil Procedure section 2032.240 further provides:

(a) If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand. The court, on motion, may relieve that plaintiff from this waiver on its determination that both of the following conditions are satisfied:

(1) The plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230.

(2) The plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The defendant may move for an order compelling response and compliance with a demand for a physical examination.

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

A motion for a mental examination should only be granted for good cause shown. (Code Civ. Proc. § 2032.320(a).) An order granting a 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. (Code Civ. Proc. § 2032.320(d).)

III. DISCUSSION

A. Separate Statement Required

California Rules of Court Rule 3.1345 states that “any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion . . . [f]or medical examination over objection.” (Cal. Rules of Court, Rule 3.1345(a).) A separate statement is not required when no response has been provided to the request for discovery.” (Cal. Rules of Court, Rule 3.1345(b).)

Defendant did not provide a separate statement.

B. Meet and Confer

Code of Civil Procedure section 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

Plaintiff argues in opposition that Defendant failed to meet and confer in good faith before making this motion. Plaintiff points to the fact that Defendant provided Plaintiff with details about the requested examination the morning of November 15, and served the instant motion that very afternoon. (Sed Decl., ¶4, Exh. 2.)

Defendant provides evidence that prior to that email exchange, Defendant had inquired multiple times about Plaintiff’s willingness to stipulate to a mental examination, including during telephone conversations on October 31 and November 8, but never received a decisive answer. (Schannong Decl. in support of Motion, ¶3; Shannong Decl. in Reply, ¶2, Exh. A.)

Defendant claims that it never served Plaintiff with a notice of mental examination because Code of Civil Procedure § 2032.310 “requires a Court Order unless the parties stipulate.” (Reply, 2:11-13.) Section 2032.310 provides that any party that “desires to obtain discovery . . . by a mental examination . . . shall obtain leave of court.” (Code Civ. Proc. § 2032.310(a).) Presumably, Defendant is also referring to Section 2016.030, which provides that “the parties may by written stipulation modify the procedures provided by this title for any method of discovery permitted under Section 2019.010,” which includes mental examinations. (Code Civ. Proc. §§ 2016.030, 2019.010(d).)

While not factually wrong, Defendant’s statement of the rules is misleading and implies that mental examinations are more often court ordered than arranged by stipulation between counsel. This is incorrect. (The Rutter Group California Practice Guide: Civil Procedure Before Trial, 1. [8:1512] Examinations by Stipulation.) Parties may stipulate in writing for a physical or mental examination on whatever terms and conditions they choose. (Id.) Defendant’s statement also does not support the contention that Defendant did not have to make a formal request for Plaintiff’s mental examination.

C. Discussion

Defendant argues that a mental examination is proper because Plaintiff placed her mental condition in controversy and Defendant cannot adequately prepare for trial without information relating to the nature and extent of Plaintiff’s alleged mental injuries.

The mental examination Defendant requests will be conducted by Nina T. Rodd, Ph.D. at her offices, which is within 75 miles of Plaintiff’s residence. (Shannong Decl. in support of the Motion, ¶ 4.) The examination will be conducted on January 17, 2024, at 10:00 a.m., and will consist of a three-hour morning session interview where Plaintiff will be asked about her mental status, social, family, psychological, medical, legal and occupational history, the subject incident, and symptoms related thereto, as well as a two-hour afternoon session during which the following psychological assessment tests will be performed:

· MMPI-2-RF (Minnesota Multiphasic Personality Inventory-2-Restructured Form),

· PAI (Personality Assessment Inventory),

· BDI-2 (Beck Depression Inventory),

· Beck Anxiety Inventory,

· MMSE-2 (Mini Mental Status Examination-2), and

· TSI-2 (Trauma Symptom Inventory-2).

(Rodd Decl., ¶4.) None of these evaluations are painful, protracted, or unduly invasive. (Id., ¶5.)

Plaintiff does not dispute that she placed her mental condition in controversy. Rather, she argues that because Defendant did not provide Plaintiff with the requisite information about the proposed examination required by Section 2032.020 until just a few hours before the motion was filed, Plaintiff was unable to properly meet and confer with Defendant. After the instant motion was filed, Plaintiff propounded a proposed stipulation that Defendant had not yet addressed as of the date of the Opposition. (Sed Decl., ¶5, Exh. 3.)

Plaintiff argues that Defendant’s motion should therefore be denied or continued with an order for the parties to continue and complete good faith and reasonable meet and confer, or, in the alternative, the Court should order the adoption of Plaintiff’s proposed stipulation together with Plaintiff’s counsel’s proposed edits to the proposed stipulation, which are laid out in counsel’s declaration.

The proposed stipulation outlines pending issues between the subject parties and the subject mental examination, including the following: (I) the Notice and subject Motion should be on behalf of all Defendants, not just Centimark, because all the defendants in this case are aligned; (2) Plaintiff’s deposition transcript should be made available to Defendant’s expert and any questions about the incident should be limited, unless the questions directly relate to damages; and (3) questions that seek to invade the attorney-client privilege and/or attorney work product privilege should be barred.

Defendant maintains in reply that Plaintiff’s counsel did not agree to stipulate to a mental examination prior to the filing of the instant motion. However, there is no allegation or evidence that Defendant ever made a formal request for stipulation. Defendant states that it did not provide the names of the tests Dr. Rodd planned to administer because Plaintiff had not requested them. (Reply, 2:3-7.) When Plaintiff asked, Defendant responded promptly. (Id.) However, Defendant gave Plaintiff no time to consider its response because it served this motion to compel that same afternoon.

Defendant also argues that it is unable to agree to the proposed stipulation because Plaintiff raises unreasonable demands, including that the entire examination be “subject to confirmation of her availability” which she may or may not provide at some unspecified later time (see Plaintiff’s proposed stipulation, ¶¶ 1, 16), that Dr. Rodd’s questions about the subject incident be limited to “a question as to [Plaintiff’s] last memory prior to any impact and her next memory thereafter” (id., ¶ 5), and that Defendant either provide Plaintiff with private transportation to and from the examination or find another psychologist to conduct the examination (id, ¶ 2) even though Dr. Rodd’s office is within 75 miles of Plaintiff’s home and Plaintiff drives to and from her workplace every day (Reply, Exh. B). Defendant also opposes Plaintiff’s request that defendant GranCare Autumn Hills sign the stipulation because Grancare did not request a mental examination. Counsel for GranCare has indicated that they are not prepared to sign a stipulation with which they have nothing to do. (Reply, 4:9-16.)

Further, Plaintiff denies that good cause exists for Defendant’s request of a mental examination because Plaintiff has provided Defendant all of Plaintiff’s medical information before and after subpoena, and Defendant has already deposed Plaintiff. Plaintiff lists several medical visits, including with neurologists Dr. Cherik, Dr. Franc and Dr. Haider, and neurosurgeon Dr. Mortazavi. (Opp’n, 1:2-2:12.) Plaintiff does not allege that she has submitted to any kind of mental evaluation.

Lastly, Plaintiff argues that Defendant’s request is untimely because Defendant has been on notice of Plaintiff’s emotional distress claims years ago. However, Defendant’s motion was filed well within the discovery deadlines imposed by the Court.

The Court will order a mental examination of Plaintiff. However, it will discuss with the parties any continuing issues regarding the examination. To the extent the issues noted above have not been resolved by the parties, the Court notes that it is not inclined to (1) limit the mental examiner’s initial interview of Plaintiff, but it agrees that the examiner cannot invade the attorney-client privilege; and (2) require the examination be deemed the examination of all defendants, though it will certainly weigh the necessity and appropriateness of any further mental examination if any additional request for such examination is made.

MOTION TO CONTINUE

I. INTRODUCTION

On January 22, 2024, Defendant moved for an order continuing the current February 29, 2024 trial date to May 9, 2024.

The motion is unopposed.

II. LEGAL STANDARD

California Rules of Court, rule 3.1332, subdivision (b) outlines that “a party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332, subd. (a).) Continuances are thus generally disfavored. (Id., Rule 3.1332, subd. (c).)

Under California Rules of Court, rule 3.1332, subd. (c), the Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. (Cal. Rules of Court, rule 3.1332, subd. (d).)

III. DISCUSSION

Defendant met and conferred with Plaintiff. (Lavigne Decl., ¶¶3, 8.) Defendant requests continuance on the grounds that Plaintiff’s mental examination has not yet taken place. Defendant’s motion to for Plaintiff’s mental examination is scheduled to be heard on the same day as the instant motion after a sua sponte continuance of the hearing. (Id., ¶4.) Defendant also needs to depose witnesses revealed by co-defendant Grancare’s PMK on January 5, 2024. (Id., ¶6.) The PMK’s deposition was rescheduled from December 8, 2023 because co-defendant’s counsel had a family medical emergency on that date. (Id., ¶5.) The witnesses disclosed by the PMK were difficult to locate and contact because the PMK refused to provide their contact information on privacy grounds. (Id., ¶7.) Lastly, Defendant’s counsel had just started a two-week trial when this motion was filed, and has another trial on March 11, 2024. (Id., ¶9.)

IV. CONCLUSION

Defendant Centimark Corporation’s unopposed motion to continue trial is GRANTED.

Moving party to give notice.

Dated: February 13, 2024

___________________________________

Lee S. Arian

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.