Judge: Lisa R. Jaskol, Case: 21STCV19791, Date: 2024-01-30 Tentative Ruling
Case Number: 21STCV19791 Hearing Date: March 14, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On May 26, 2021, Plaintiff Sedigheh Hajizadeh (“Plaintiff”) filed this action against Defendants Magic Mountain, LLC (“Defendant”) and Does 1-50 for general negligence and premises liability.
On June 21, 2021, Defendant filed an answer.
On May 5, 2023, the Court granted in part Defendant’s ex parte application and continued the trial from July 13, 2023 to September 20, 2023. The Court granted Defendant’s request that the discovery and law-and-motion deadlines related to Defendant’s motion to compel Plaintiff’s independent medical examination be based on the new trial date. The Court declined to extend other discovery and law-and-motion deadlines.
On July 28, 2023, the Court granted Plaintiff’s motion to continue the trial and continued the trial from September 20, 2023 to March 1, 2024. The Court granted Plaintiff’s request to continue the expert discovery cut-off dates to correspond with the new trial date but denied Plaintiff’s request to continue the fact discovery cut-off date to correspond with the new trial date.
On January 9, 2024, Defendant filed a motion for leave to conduct Plaintiff’s psychological examination and for sanctions. The motion was set for hearing on March 14, 2024. On March 1, 2024, Plaintiff filed an opposition. On March 7, 2024, Defendant filed a reply.
On January 11, 2024, the Court granted in part Defendant’s ex parte application and continued the trial from March 1, 2024 to May 6, 2024. The Court denied without prejudice the request to reopen discovery with the exception of the March 14, 2024 hearing on Defendant’s motion for leave to conduct Plaintiff’s psychological examination.
Trial is currently scheduled for May 6, 2024.
PARTIES’ REQUESTS
Defendant asks the Court for leave to conduct Plaintiff’s examination with psychologist Heleya Rad, PsyD., via remote video conference on February 15, 2024 at 9:00 a.m. Defendant also asks the Court to impose $2,760.00 in sanctions on Plaintiff.
Plaintiff asks the Court to deny the motion and impose sanctions of $2,000.00 on Defendant.
LEGAL STANDARD
Code of Civil Procedure section 2032.310 provides:
“(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.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides in part:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
Defendant moves for leave of court to conduct a mental examination of Plaintiff. Defendant argues that Plaintiff received psychological treatment from Anthony E. Reading, M.Phil., Ph.D., of UCLA Resnick Neuropsychiatric Hospital in July 2023 and Plaintiff’s counsel received a report from Dr. Reading dated August 16, 2023. However, Plaintiff’s counsel did not disclose the report or Plaintiff’s treatment with Dr. Reading to Defendant’s counsel until December 31, 2023. According to Defendant, Plaintiff should have disclosed this information five months earlier in response to Defendant’s discovery requests. Instead, Defendant asserts, Plaintiff withheld this information until the time to notice a timely independent medical examination had expired. Defendant argues that it is entitled to conduct a psychological examination to evaluate Plaintiff’s newly revealed claims of psychological injury and claim for future psychological care.
Defendant has attached a copy of the parties’ June 2023 stipulation which withdrew Plaintiff’s traumatic brain injury claim and provided that “Plaintiff however is permitted to make a claim at trial for physical injuries (other than a traumatic brain injury), associated emotional distress/pain and suffering, and psychological injuries which include, but are not limited to: post-traumatic stress disorder, anxiety, depression, panic attacks, adjustment disorder, and sleep disorders. [¶] As psychological claims remain at issue: Plaintiff may call as a witness, at time of trial, a clinical psychologist to testify about any psychological injuries. [¶] Likewise, Defendant may elect to call a clinical psychologist to testify about any psychological injuries at time of trial. [¶] Defendant may further notice a [defense medical examination] of Plaintiff by a clinical psychologist on proper statutory notice.” (Stipulation ¶¶ 10-14.)
Defendant argues that Plaintiff has waived the stipulation’s requirement of proper statutory notice because “Plaintiff has not timely produced the discovery responses and documents relating to Plaintiff’s care . . . .” (Motion p. 9; see ibid. [“Plaintiff’s argument relating to timeliness is waived as it is the Plaintiff who has not timely produced relevant documents although Defendant’s counsel has asked for Code compliant responses for over five months”].)
Plaintiff opposes Defendant’s motion, arguing the deadline specified in the parties’ stipulation has passed. The stipulation allows Defendant to “notice a [defense medical examination] of Plaintiff by a clinical psychologist on proper statutory notice.” (Stipulation ¶ 14.) According to Plaintiff, Defendant did not provide proper statutory notice because the discovery cut-off for a mental examination was in August 2023 but Defendant first noticed the examination in January 2024. Moreover, Plaintiff argues, the stipulation is binding because Defendant has not moved to set it aside and the Court has not granted that relief.
Even without the stipulation, Plaintiff argues, the Court lacks authority to compel a mental examination because discovery has closed and Defendant has not moved to reopen discovery.
In
addition, Plaintiff denies that she withheld
information about her psychological condition and treatment until December 31,
2023. Plaintiff points to the stipulation,
which, as noted, states that “psychological claims remain at issue” and that Plaintiff
“is permitted to make a claim at trial for physical injuries (other than a
traumatic brain injury), associated emotional distress/pain and suffering, and
psychological injuries which include, but are not limited to: post-traumatic
stress disorder, anxiety, depression, panic attacks, adjustment disorder, and
sleep disorders.”
Plaintiff also cites her August 2021 discovery responses identifying anxiety and depression as
injuries resulting from the accident and naming a psychologist and doctors who
provided evaluation, recommendations, and treatment.
Plaintiff also denies that Dr. Reading treated her. Instead, Plaintiff asserts, her counsel retained Dr. Reading to perform a forensic evaluation. As a result, Plaintiff argues, she was not required to disclose Dr. Reading until he was designated as an expert witness.
Defendant does not directly address Plaintiff’s assertion that, in her August 2021 discovery responses, she disclosed psychological injuries and named a psychologist and doctors who provided evaluation, recommendations, and treatment. Instead, Defendant asserts in its reply that the need for a psychological examination “first arose” when Plaintiff produced Dr. Reading’s report in December 2023. (Reply p. 7.)
The Court has reviewed Plaintiff’s August 2021 discovery responses and concludes that Plaintiff did not withhold information about her psychological symptoms. Defendant had sufficient information to support a request for a psychological examination when it received Plaintiff’s August 2021 discovery responses. Defendant’s subsequent receipt of Dr. Reading’s report does not change this conclusion.
Defendant has not shown good cause for an order granting leave to conduct Plaintiff’s physical examination because Defendant was not diligent in attempting to conduct the examination. Moreover, an order granting leave to conduct Plaintiff’s the examination is likely to prevent the case from going to trial on May 6, 2024 as scheduled.
The Court denies Defendant's motion and request for sanctions. The Court also denies Plaintiff’s request for sanctions for lack of statutory authorization.
CONCLUSION
The Court DENIES Defendant Magic Mountain, LLC’s motion for leave to take Plaintiff Sedigheh Hajizadeh’s psychological examination and for sanctions.
The Court DENIES Plaintiff Sedigheh Hajizadeh’s request for sanctions.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.