Judge Lee S. Arian, Case Number: 22STCV23184, Date: 2024-01-03 Tentative Ruling

RESPONDING PARTY: Defendants Marcelo Osvaldo Spinelli Moreno and Temperature Equipment Corporation (“Defendants”)

This action arises from a motor vehicle accident which occurred on September 27, 2021. On July 18, 2022, Plaintiff Sandra Garcia (“Plaintiff”) filed a Complaint against Defendants Marcelo Osvaldo Spinelli Moreno, Temperature Equipment Corporation (collectively, “Defendants”), and Does 1 to 50, alleging causes of action for: (1) Negligence/Negligence Per Se, (2) Negligent Entrustment, and (3) Negligent Hiring.

On December 1, 2023, Plaintiff filed the instant motion to strike Defendants’ retained neuropsychological expert, Dr. Kyle Boone (the “Motion”). Pursuant to the Motion, Plaintiff requests that the Court impose issue and evidentiary sanctions against Defendants. The Motion is made on the grounds that Defendants fraudulently misrepresented the nature and type of examination conducted in order to obtain a mental examination which requires a court order.

On December 19, 2023, Defendants filed and served an opposition to the Motion. No reply brief was filed. Any reply brief was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

On January 3, 2024, the parties submitted to the tentative ruling of the Court, and Court granted Plaintiff’s motion for an order compelling production of Dr. Boone’s neuropsychological raw data.

It is undisputed that a neuropsychological examination of Plaintiff has occurred without leave of this Court. Thus, the sole issues to be addressed in this ruling are: (1) whether Dr. Boone should be stricken as an expert; and (2) whether issue and evidence sanctions should be imposed against Defendants.

A defendant who seeks to conduct a mental examination of plaintiff must file a motion and “obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).) The court may grant such a motion “only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (b).) 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.) A mental examination is generally appropriate only when a plaintiff alleges continuing emotional distress or mental injury and so places his or her mental or emotional condition “in controversy” in the action. (Ibid.)

Plaintiff contends that Dr. Boone should be stricken as an expert because Defendants were not entitled to a mental examination absent a stipulation or court order. Defendants assert that an incorrect demand for examination was prepared and served on Plaintiff due to the mistake, inadvertence, and excusable neglect of their counsel.

In support of the Motion, Plaintiff’s counsel, Arielle B. Farias, Esq. (“Farias”), declares that prior to commencing the “fraudulently” obtained mental examination, Defendants’ counsel, David Hillier, stated to her that he wished to conduct a “neuro” examination of Plaintiff following her deposition. (Farias Decl., ¶ 3.) Counsel thought that Defendants wished to conduct a neurological examination. (Id.) On October 5, 2023, Defendants served a Demand for Physical Examination, and no neuropsychological testing was stated therein. (Id., ¶ 4; Exhibit A.) After Plaintiff served an objection and response, and Defendants served a reply which mentioned a physical examination, Defendants’ counsel confirmed in an e-mail that the examination to be conducted was a neurological examination. (Id., ¶¶ 5-7; Exhibits C and D.)

the parties agreed that Defendants would not need to file a motion with the court regarding Plaintiff’s neuropsychological issues. (Hillier Decl., ¶ 9.) Counsel indicates that, due to his mistake, inadvertence, or excusable neglect, an incorrect form was used to prepare a Demand for Examination by Kyle Boone, Ph.D., and it listed Dr. Boone’s specialty as neurology rather than neuropsychology but indicated that Plaintiff would be cognitively evaluated. (Id., ¶ 10; Exhibit E.) Dr. Boone prepared a report of the examination which was provided to Plaintiff as an attachment to Defendants’ 2034 Response. (Id., ¶ 11; Exhibit F.) Counsel attests that Defendants will be irreparably harmed and suffer a great injustice if they are barred from presenting their expert witness, Dr. Boone, and her work product due to the mistake and inadvertence of counsel. (Id., ¶ 12.)

The Court has reviewed the Demand for Physical Examination at issue, which is attached as Exhibit A to the declaration of Farias in support of the Motion. Such demand does not state that the examination is a neuropsychological examination, and at multiple points therein indicates that such examination is a physical examination. (Farias Decl.; Exhibit A.) While there exists a conflict as to what respective counsel thought was the scope and purpose of the examination, it is undisputed that Defendants obtained a neuropsychological examination without obtaining leave of court.

Based on a review of the purported Demand for Physical Examination, it appears that Defendants were only seeking a neurological examination of Plaintiff and not the neuropsychological examination that ultimately occurred. The demand does mention that such examination would include an evaluation of Plaintiff’s cognitive health; however, it did not indicate that the examination would be a neuropsychological examination. Thus, Defendants obtained a neuropsychological examination without: (1) allowing Plaintiff the opportunity to challenge such the scope and nature of such examination; and (2) obtaining leave of this Court.

The Court generally agrees that there must be some consequence to the clear violation of the Code of Civil Procedure. Plaintiff has requested that Dr. Boone be stricken as an expert, which the Court deems to be a form of an evidence sanction. Plaintiff also seeks additional evidence sanctions, as well as issue sanctions.

Plaintiff contends that issue and evidentiary sanctions are warranted against Defendants. Plaintiff seeks an issue sanction with a finding that she sustained a brain injury as a result of the underlying incident that gives rise to this lawsuit. As to evidence sanctions, Plaintiff seeks an evidence sanction precluding Defendants from presenting any evidence contradicting Plaintiff’s brain injury resulting from the underlying incident that gives rise to this lawsuit, as well as, as noted above, the evidence sanction of precluding Dr. Boone from testifying.

“Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Ibid.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

To impose issue or evidence sanctions, there must be a failure to comply with a court order and the failure must be willful. (Biles v. Exxon Mobil Corp., supra, 124 Cal.App.4th 1315, 1327.) “Even where nonmonetary sanctions are called for, they should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Ibid.) “The sanctions the court may impose are such that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” (Ibid.)

The Court is inclined to impose evidence sanctions by excluding Dr. Boone as an expert. Before doing so, however, the Court would like to hear further argument regarding whether the conduct was willful, as well as hear about potential alternate sanctions. The Court finds that the other sanctions requested are excessive and declines to impose those sanctions.

Hon. Lee S. Arian

Judge of the Superior Court