Judge Lee S. Arian, Case Number: 21STCV37199, Date: 2023-11-09 Tentative Ruling

On October 7, 2021, Plaintiffs Sheldon Phillips, and Martin Phillips (collectively “Plaintiffs”) filed a complaint against Defendant Anie Kevork Mikaelian (“Defendant”) and Does 1-5, alleging causes of action for motor vehicle and general negligence.

On August 14, 2023, Defendant filed a motion for leave to conduct mental examination of Plaintiff Sheldon Phillips. On November 2, 2023, Plaintiffs filed an opposition. On November 8, 2023, Defendant filed a reply.

“As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.”¿¿(Carpenter v. Superior Court¿(2006) 141 Cal. App. 4th 249, 258.)¿¿

California Code of Civil procedure section 2032.310 states: “(a) 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. (b) A motion for an examination under subdivision (a) 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 person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

California Code of Civil Procedure section 2032.320 states: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical or 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.”

“[A]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).)

“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2024.050, subd. (a).)

As a preliminary matter, the Court must determine whether Defendant’s motion is timely made. On August 25, 2023, the Court issued an Order continuing the trial originally scheduled for October 5, 2023, to March 15, 2023, and stated “Discovery remains tied to the current trial date, not the new trial date, with the exception of previously designated experts for whom the discovery cut-off date will be the new trial date. The court cannot reopen discovery by ex parte application absent an agreement.” (08/25/23 Minute Order.) As of this date, the parties did not stipulate to an agreement to reopen discovery with the Court. In addition, Defendant failed to conduct an informal discovery conference prior to filing this motion.

Given that discovery tracks to the initial trial date of October 5, 2023, Defendant’s motions concerning discovery had to be heard before the 15^th day of trial, which is September 20, 2023. However, the Court finds that a mental examination is a discovery proceeding since it is a method for a party to “obtain discovery”, which must occur on or before the 30th day before trial. (See Code Civ. Proc., § 2019.010 [“Any party may obtain discovery by one or more of the following methods: … (d) Physical and mental examinations”].) The cut-off date for discovery proceedings in this matter is September 5, 2023. The hearing for this instant motion is scheduled for November 15, 2023. The Court finds that the order to compel the discovery proceeding is to be heard past the discovery cut-off date provided in Code of Civil Procedure section 2024.020, subdivision (a).

There is no dispute between the parties that Plaintiff has put his mental state in issue by pleading that he suffers from “fatigue, mental fogginess, irritability, anxiety and depression” (Fajardo Decl., Ex A, pg. 7.) While Defendant argues there is good cause for the Court to order the mental examination, Defendant does not move for leave to complete discovery proceedings closer to the initial trial date pursuant to Code of Civil Procedure section 2024.050, subdivision (a). See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1571 [trial court prejudicially abused discretion by granting motion to compel after discovery motion cutoff date when moving party had not moved to reopen discovery under Code of Civil Procedure section 2024.050].) Accordingly, the motion is denied.

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