Judge Lee S. Arian, Case Number: 21STCV28557, Date: 2024-12-19 Tentative Ruling

The instant action arises from a motor vehicle collision on August 6, 2019. Plaintiff Maria Elena Espinoza (“Plaintiff”) alleges that she was rear-ended by Defendant Luis Cornejo who was employed by On Track Transportation, Inc. (“Defendants”). Plaintiff asserts two causes of action for (1) Motor Vehicle and (2) General Negligence. Plaintiff alleges serious injuries, including traumatic brain injury, arising from the incident described above.

On June 12, 2024, Defendants served Plaintiff with a Notice of Demand for Independent Medical Examination (“IME”), specifically for a mental examination. (Heineman Decl., ¶ 4, Ex. 2.)

On November 20, 2024, Defendants filed the instant motion to compel a mental examination of Plaintiff.

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 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).) A showing of good cause generally 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.)

First, the Court finds that the instant motion is properly accompanied by a meet and confer declaration wherein Defendants’ counsel describes attempts to resolve the matter before filing the instant motion. (Heineman Decl., ¶ 7, Ex. 4.) After Plaintiff failed to validly object or appear at the IME, Defendants’ counsel contacted Plaintiff’s counsel via email on November 7, 2024 and provided three dates for Plaintiff to appear at a rescheduled IME. (Id.) Defense counsel requested a response by the end of the week, but Plaintiff’s counsel did not respond. (Id.) Thus, Defendants properly attempted to meet and confer before filing the instant motion.

Second, the Court finds that Plaintiff has placed her mental condition in controversy. Defendants argue that Plaintiff has placed her mental condition in controversy because she alleged in her Complaint that as a result of the motor vehicle collision, she suffered a traumatic brain injury. (Complaint, p. 3.) Plaintiff does not refute this assertion. Thus, Plaintiff’s mental condition is in controversy.

Further, Defendant contends, and Plaintiff agrees, that Plaintiff’s counsel previously stipulated with Defendant that Plaintiff would appear for an independent mental examination. (Heineman Decl., ¶ 3, Ex. 1.; Opposition, p. 4.) However, Plaintiff failed to appear or properly object to her independent mental examination set for September 16, 2024. (Heineman Decl., ¶ 3.) While Plaintiff argues in Opposition that Plaintiff failed to appear at the September 16, 2024 examination with “good cause” as Plaintiff was summoned for jury duty, this is not a proper objection as Plaintiff failed to provide alternative dates or timely notify Defendant of this unavailability. Plaintiff argues that the mental examination was scheduled unilaterally “in violation of local court rules” but fails to cite to any specific rule which prohibits the unilateral scheduling of IMEs. Thus, Plaintiff failed to appear at the scheduled IME without valid objection. Therefore, Defendants are entitled to an order compelling Plaintiff’s attendance at the mental examination.

The Court also finds that Defendants properly specified the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of psychologist Ted D. Evans, Ph.D., the person who will perform the examination. However, the proposed order does not properly specify the diagnostic tests and procedures to be employed. Thus, the Court conditionally GRANTS the motion to compel Plaintiff’s mental examination, subject to Defendants filing a compliant proposed order specifying the diagnostic tests and procedures to be employed by Monday, December 23, 2024.

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 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. (Code Civ. Proc., § 2032.250, subd. (b).)

Defendants request $3,535 in sanctions against Plaintiff, comprised of $1,160 in attorney fees and costs and $2,375 in no-show fees, $1,800 for Dr. Evans and $575 for the Spanish interpreter as a result of Plaintiff’s failure to attend the IME. (Heineman Decl., ¶ 5, Ex. 3.)

The Court finds that Defendants are entitled to sanctions against Plaintiff as Plaintiff unsuccessfully opposed the instant motion and failed to act with substantial justification or present circumstances that make the imposition of sanctions unjust. Plaintiff improperly objected to the IME notice without offering alternative dates, failed to appear at the IME, and Plaintiff’s counsel was uncooperative with Defendants’ counsel’s multiple attempts to reschedule the IME to a mutually agreeable date.

Further, Plaintiff’s counsel failed to notify Defendants’ counsel of Plaintiff’s unavailability due to jury duty in a timely manner that would allow Defendants to cancel with the expert and interpreter without incurring fees. Plaintiff’s counsel called Defense counsel on Thursday afternoon, September 12, 2024, with less than 48 business hours before the Monday, September 16, 2024, IME at 8:30 AM. After Plaintiff’s counsel notified Defendants’ counsel that Plaintiff had to report for jury duty and would not appear at the IME, Defendants’ counsel suggested that Plaintiff seek a continuance of jury duty. Plaintiff’s counsel stated that he would speak with Plaintiff and try to call the court to request a continuance of jury duty. Plaintiff’s counsel stated that he would call back if he could not resolve the jury duty issue. As Plaintiff’s counsel never called back, Defendants’ counsel reasonably assumed that Plaintiff’s jury duty was continued or that she did not need to appear/report for jury duty on September 16, 2024, such that Plaintiff would appear at the IME. (Reply, Heineman Decl., ¶ 4, Ex. B.) Further, as Defendants point out in Reply, Plaintiff surely had more than two days advanced notice of jury duty and could have relayed unavailability earlier to avoid expert and translator cancellation fees, but failed to do so.

Finally, the Court does not find persuasive Plaintiff’s argument that her failure to appear at this IME is justified by Defendants’ cancellation or rescheduling of the four previously set IMEs. (Opposition, pp. 2-3.) Plaintiff cites no legal authority to establish that prior cancellations of IMEs by the opposing party justifies the failure to appear at a properly noticed rescheduled IME. In Reply, Defendants argue that the prior IMEs were justifiably cancelled or rescheduled by Defendants largely due to issues with Plaintiff’s deposition compliance and Plaintiff/Plaintiff’s counsel’s unavailability for the IME. (Reply, pp. 2-3.) Although neither party proffers any evidence to clearly establish the circumstances surrounding the prior cancellations, the prior cancellations are, in any event, not relevant to the instant motion.

Accordingly, the Court finds the requested no-show fees and attorney fees and costs to be reasonable.

Accordingly, the Motion to compel the mental examination of Plaintiff is conditionally GRANTED, subject to Defendants filing a compliant proposed order specifying the diagnostic tests and procedures to be employed, by Monday, December 23, 2024.

Defendants’ request for sanctions is GRANTED in the amount of $3,535. Sanctions are awarded jointly and severally against Plaintiff and her counsel and are to be paid within 30 days.

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.

Hon. Lee S. Arian

Judge of the Superior Court