Judge: Lee S. Arian, Case: 23STCV000651, Date: 2025-01-22 Tentative Ruling

Case Number: 23STCV000651    Hearing Date: January 22, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

On January 11, 2023, Plaintiff filed the present case alleging that on November 20, 2021, an MTA bus collided with his parked motorhome while he was inside, causing him to suffer headaches, dizziness, and gait issues affecting his left side. Plaintiff testified during his deposition that he struck his forehead upon impact and subsequently developed post-cerebral concussion syndrome.

On August 29, 2024, Defendant noticed a defense medical examination with Dr. Kowell for October 3, 2024. On September 18, 2024, Plaintiff served his objections. Subsequently, Defendant met and conferred with Plaintiff, including a request for Plaintiff to stipulate that he would not claim neurological injuries. Plaintiff's counsel did not respond. Defendant now moves the Court to compel Plaintiff to attend his neurological examination scheduled for February 5, 2025. Plaintiff did not file an opposition.

Legal Standard

Except for defense physicals in personal injury cases and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP § 2032.320(a).)

        The examination will be limited to whatever condition is “in controversy” in the action.  (CCP § 2032.020 (a).) This means the specific injury or condition that is the subject of the litigation. The examination must be directly related thereto. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.) Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839—plaintiff claimed ongoing emotional distress from sexual harassment by former employer.) Discovery responses can also frame the issues regarding the injuries and damages alleged.

        Where plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of plaintiff. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255—second mental examination may be ordered.)

A mental or physical exam cannot be compelled where no continuing injury is claimed; e.g., where plaintiff alleges only physical injury or emotional distress in the past. (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1886–1887.) Similarly, a plaintiff claiming only physical injury cannot be forced to submit to a psychiatric examination, even on the theory that her psychiatric condition decreased her tolerance to the physical pain of which she complains.  (See Roberts, supra, 9 Cal.3d at p. 337.) But a psychiatric exam may be ordered where plaintiff also claims “great mental pain and suffering” resulting from physical injury.  (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 340.) In other words, where plaintiff claims unusual psychiatric symptoms, a defense mental exam is clearly proper. However, where the mental suffering claimed is no different than that generally associated with physical injury, forcing plaintiff to submit to a full-blown psychiatric exam may be pure harassment. A personal injury plaintiff can avoid a mental exam by disclaiming any unusual mental or emotional suffering and agreeing not to introduce expert testimony on these issues at trial. (CCP § 2032.320(c).) The Discovery Act permits a plaintiff to avoid the necessity of submitting to a mental examination by stipulating that: (1) no claim is being made for mental and emotional distress “over and above that usually associated with the physical injuries claimed”; and (2) no psychiatric testimony will be offered at trial in support of any claimed emotional distress. (See CCP § 2032.320(c).)

        The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action. The moving party must also establish good cause for the examination(s) sought. A court order for physical or mental examination must be based on a showing of “good cause” (CCP § 2032.320(a)): (1) relevancy to the subject matter; and (2) specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  The purpose is to protect an examinee's privacy by preventing annoying “fishing expeditions” - i.e., one party may not compel another to undergo psychiatric testing “solely on the basis of speculation that something of interest may surface.” (Id.) 

The notice of motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination.”  (CCP § 2032.310(b).)  The requirement for specification of the “manner, conditions, scope and nature of the examination” apparently requires disclosure of whatever diagnostic tests and procedures will be utilized (x-rays, blood and urine samples, etc.).  (See CCP § 2032.220(c).)  The notice of motion must be accompanied by a separate document setting forth the discovery request, the Declarations must state facts showing that “a reasonable and good faith attempt” to arrange the examination by stipulation was unsuccessful.  (CCP § 2032.310(b).)   

Discussion

Before filing this motion, Defendant attempted to meet and confer with Plaintiff, but Plaintiff's counsel did not respond. Thus, the meet and confer requirement has been fulfilled by Defendant, to the extent possible.

Plaintiff's allegations and deposition testimony establish that his neurological condition is in controversy. Plaintiff claims he sustained neurological injuries, including headaches and gait disturbances, and has sought treatment from a neurologist. These allegations directly relate to his claims for damages. Plaintiff is alleging wage loss, loss of earning capacity, and medical expenses. Defendant is entitled to a neurological examination to assess the extent of Plaintiff’s injuries and the severity of Plaintiff’s alleged post-cerebral concussion syndrome, as there is no alternative means to obtain this information other than through a neurological examination.

Defendant has complied with the requirements of Code of Civil Procedure section 2032.310(b) by specifying the time, place, manner, conditions, scope, and nature of the examination. The examination is scheduled for February 5, 2025, at 1:00 p.m., and will include an evaluation of Plaintiff's medical history, symptoms, and neurological function, with an estimated duration of two hours. Dr. Kowell, a board-certified neurologist, will conduct the examination.

Defendant has satisfied all requirements to compel Plaintiff’s examination, and Plaintiff did not file an opposition. Thus, the motion is granted, and Plaintiff is ordered to attend his examination on February 5, 2025.

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’s 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.