Judge: Lisa R. Jaskol, Case: 21STCV43026, Date: 2024-11-06 Tentative Ruling
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Case Number: 21STCV43026 Hearing Date: November 6, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Case no. 21STCV43026
On November 22, 2021, Plaintiff Marius Spada (“Spada”) filed an action against Defendants Cal-West Fire Protection Specialist (“Cal-West”), J.R. Lennen Construction, Inc. (“JR”), Blink Fitness (“BF”), Blink Holdings, Inc. (“BH”), Blink 16123 Bellflower Blvd., Inc. (“BBB”), and Shadrall Bellflower, LP (“SB”) for premises liability and general negligence. Plaintiff later amended the complaint to include Defendants Auburndale Properties, L.L.C. (“AP LLC”), Auburndale Properties, Inc. (“AP Inc.”), Aldi Foods Inc. (“AF”), Aldi Inc. (“Aldi”), and Al California LLC (“Al”). (Case no. 21STCV43026.)
On January 28, 2022, BBB and Cal-West filed answers.
On February 18, 2022, SB filed an answer and a cross-complaint against Cross-Defendants Roes 101-150 for breach of contract, express indemnification, implied indemnity, comparative contribution, total equitable indemnity and declaratory relief.
On March 21, 2022, JR filed an answer.
On September 12, 2022, AF, Aldi and Al filed an answer and a cross-complaint against Cross-Defendants BF, BH, BBB, Cal-West and JR for breach of contract, breach of contract to provide insurance, express indemnity, implied equitable indemnity, contribution, negligence and declaratory relief.
On October 14, 2022, BBB, Cal-West and JR filed an answer.
On June 7, 2022, AP Inc. and AP LLC filed an answer and a cross-complaint against Cross-Defendants Moes 101-150 for breach of contract, express indemnification, implied indemnity, comparative contribution, total equitable indemnity and declaratory relief.
B. Case no. 22STCV13852
On April 26, 2022, Plaintiff Lillie James (“James”) filed an action against Defendants Cal-West, JR, BF, BH, BBB, SB, AP Inc. and AP LLC for general negligence (loss of consortium) and premises liability (loss of consortium). (Case no. 22STCV13852.)
On June 30, 2022, Cal-West, BBB and JR filed answers.
On July 15, 2022, SB, AP Inc. and AP LLC filed an answer.
C. The Court relates and consolidates the cases
On June 27, 2022, the Court found that case numbers 21STCV43026 and 22STCV13852 are related within the meaning of California Rules of Court, rule 3.300(a).
On July 28, 2022, the Court consolidated the cases for all purposes.
D. Post-consolidation proceedings
On August 30, 2023, the Court granted Compwest Insurance Company's motion for leave to file a complaint-in-intervention. On August 31, 2023, Plaintiff-in-Intervention Compwest Insurance Company (“Compwest”) filed a complaint-in-intervention against Defendants Cal-West, JR, BF, BH, BBB, SB, and Does 1-20 for general negligence, premises liability, and Labor Code section 3852.
On October 9, 2023, Cal-West, JR, BF, BH, BBB, and SB filed an answer to Compwest’s complaint-in-intervention.
On March 18, 19, and 28, 2024, the Court dismissed BBB, BH, BF, SB, Aldi, and AF with prejudice from Spada’s and James’s complaints at their request.
On March 22, 2024, the Court dismissed BF, BH, BBB, and SB with prejudice from Compwest’s complaint-in-intervention at its request.
Trial is currently scheduled for January 23, 2025.
E. Motion to compel neuropsychological examination
On August 21, 2024, the Court denied without prejudice the motion for leave to conduct Spada’s neuropsychological examination filed by Cal-West and J.R.
On September 17, 2024, Cal-West and JR (“Moving Defendants”) filed another motion to compel Spada’s neuropsychological examination. The motion was set for hearing on November 6, 2024. On October 24, 2024, Spada filed an opposition. On October 30, 2024, Moving Defendants filed a reply.
F. Motion to be relieved as counsel
PARTIES’ AND COUNSEL'S REQUESTS
A. Motion to compel neuropsychological examination
Moving Defendants ask the Court to compel Spada to appear for a neuropsychological examination on November 11 and 12, 2024 with Kyle Boone, Ph.D., a clinical neuropsychologist, and to impose sanctions on Spada.
Spada asks the Court to deny the motion.
Richard Barone and Rose, Klein & Marias LLP ask to be relieved as Spada's counsel.
LEGAL STANDARD
A. Motion to compel neuropsychological examination
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.
* * *
“(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:
“(1) The court determines that there is good cause for the travel involved.
“(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”
(Code Civ. Proc., § 2032.320, subds. (a), (d), (e).)
Code of Civil Procedure section 2017.020, subdivision (a), provides:
“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”
(Code Civ. Proc., § 2017.020, subd. (a).)
B. Motion to be relieved as counsel
Code of Civil Procedure section 284 provides:
“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination as follows:
1. “Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes;
2. “Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”
(Code Civ. Proc., § 284.)
California Rules of Court, rule 3.1362, provides:
“(a) Notice
“A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).
“(b) Memorandum
“Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel.
“(c) Declaration
“The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).
“(d) Service
“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail.
“(1) If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either:
“(A) The service address is the current residence or business address of the client; or
“(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.
“(2) If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address.
“As used in this rule, ‘current’ means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.
“(e) Order
“The proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.”
(Cal. Rules of Court, rule 3.1362.)
DISCUSSION
I. Motion to compel Plaintiff's neuropsychological examination
A. Good cause for examination
Spada contends that, as a result of the accident giving rise to this case, he suffers from a traumatic brain injury and related symptoms. On June 25, 2024, Spada appeared for a neuropsychological independent medical examination with Dr. Boone at his office in Torrance, California. After about 45 minutes, Spada became agitated and ended the examination.
Moving Defendants contend that good cause exists to compel Spada to complete the examination under Code of Civil Procedure section 2032.310 because Spada’s medical condition is a key aspect of the litigation.
In response, Spada argues that he is “medically unable” to participate in an independent medical examination. To support his argument, Spada points to his behavior at the June 25, 2024 neuropsychological examination. In addition, Spada has submitted the August 12, 2024 declaration of Edgar O. Angelone, Ph.D., who conducted a forensic neuropsychological examination of Spada on May 7 and 8, 2024. In the declaration, Dr. Angelone expresses his “professional opinion that the patient does not have the ability or capacity to stand an evaluation of any length of time.”
Plaintiff argues that his inability to sit through an evaluation is a symptom of his injury which, he suggests, is beyond his control. Yet Plaintiff also contends that he left Dr. Boone’s June 25, 2024 examination because Dr. Boone (according to Spada) was “condescending and rude.” (Opposition pp. 4, 9.) Plaintiff’s decision to leave the examination in response to a perceived provocation suggests that Plaintiff can exercise control over his behavior.
Citing Code of Civil Procedure section 2017.020, subdivision (a), Spada asserts that the burden of submitting to an examination would outweigh any likelihood that the examination would lead to the discovery of admissible evidence. Spada suggests that Moving Defendants instead rely on Spada’s medical records.
In their reply, Moving Defendants ask the Court to disregard Dr. Angelone’s opinion because Dr. Angelone succeeded in conducting an evaluation despite Spada’s behavioral issues. According to Moving Defendants, “even a contentious evaluation will yield certain medical findings.” (Reply p. 7.)
Having considered the parties’ arguments, the Court finds good cause to require Spada to complete his neuropsychological examination with Dr. Boone.
B. Spada’s residence
Citing Code of Civil Procedure section 2032.220, Spada asserts that traveling to Southern California for an examination would be “an undue burden on Plaintiff given his condition, his present residence in Oakland, [California,] and his present lack of necessary medication.” (Opposition p. 5.) Spada supports this assertion only with his attorney’s declaration. (Barone dec. ¶ 10.) Spada’s attorney states that his office “is presently taking steps to secure the medication that [Spada] may need.” (Barone dec. ¶ 9.)
As Spada acknowledges, Moving Defendants are seeking leave to conduct an examination under Code of Civil Procedure section 2032.310. (See Opposition pp. 5-6.) Therefore, Code of Civil Procedure section 2032.220 – which Spada cites – does not apply here. Instead, the Court applies Code of Civil Procedure section 2032.320, subdivision (e), which authorizes the Court to order a person to submit to an examination more than 75 miles from his or her residence if “(1) The court determines that there is good cause for the travel involved” and “(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.” (Code Civ. Proc., § 2032.320, subd. (e).)
Having reviewed the parties’ contentions, the Court finds that, if Spada resides more than 75 miles from the place of examination, there is good cause for an order requiring Spada to travel to Southern California for the remainder of his examination with Dr. Boone. This order is conditioned on Moving Defendants advancing the reasonable expenses and costs to Spada for travel to the place of examination.
C. Time, place, manner, conditions, scope, and nature of the examination
Spada argues that Moving Defendants “have not specified ‘the time, place, manner, conditions, scope, and nature of the examination” for purposes of Code of Civil Procedure section 2032.310, subdivision (b).
In their motion, Moving Defendants state that the examination will take up to six hours. It is scheduled to take place on November 11, 2024 and/or November 12, 2024, if necessary. In the first part of the examination, Dr. Boone will take a history and observe Spada. In the second part of the examination, Dr. Boone will administer “standard, validated psychological and neuropsychological tests” including some or all of those listed in Moving Defendants’ motion. (See Motion pp. 6-7 [listing tests].) The notice of Spada's previous examination with Dr. Boone, which lists Dr. Boone's address, is attached to Moving Defendants' motion.
The Court finds that Moving Defendants have satisfied the requirements of Code of Civil Procedure section 2032.310, subdivision (b).
The Court grants the motion to compel Spada to complete his examination by Dr. Spada, conditioned on Moving Defendants advancing the reasonable expenses and costs to Spada for travel to the place of examination if Spada's residence is more than 75 miles away.
D. Audio recording
Moving Defendants contend that “Plaintiff may audio-record the interview [portion of the examination], but only Dr. Boone will audio-record the testing portion of the examination and she will subsequently convey the audio-recording directly to Plaintiff’s retained licensed psychologist expert only, in order to ensure compliance with position papers issued by neuropsychological organizations which prohibit the release of certain protected psychological test information to non-psychologists.” (Motion p. 7.)
Code of Civil Procedure section 2032.530, subdivision (a), provides that “The examiner and examinee shall have the right to record a mental examination by audio technology.” (Code Civ. Proc., § 2032.530, subd. (a).) “[S]ince section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording.” (Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 837.)
The statute’s plain language allows Plaintiff to use audio technology to record the examination without imposing any limitations. Moving Defendants cite no legal authority that would allow the Court to limit Spada’s rights under Code of Civil Procedure section 2032.530, subdivision (a), for the reasons Moving Defendants give.
The Court orders that Spada may record all portions of the neuropsychological examination by audio technology. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 8:1595, p.8I-25 [“Both the examiner and the examinee have the right to record the entire examination by audio (but not video) technology”].) The parties may submit a stipulated protective order restricting the dissemination of information contained in the audio recording for the Court’s approval.
E. Raw data
Moving Defendants also assert that, “for . . . test security and protection reasons, copies of the psychological test data sheets used to document Plaintiff’s test performance can only be forwarded to plaintiff’s retained, licensed psychologist expert.” (Motion p. 7.)
Spada does not address this issue and Moving Defendants have not asked the Court to rule on it. Therefore, the Court does not rule on the issue.
F. Sanctions
Code of Civil Procedure sections 2032.310 and 2032.320, which provide the legal basis for Moving Defendants' motion, do not contain monetary sanctions provisions. However, citing Code of Civil Procedure section 2023.030, subdivision (a) – one of “the general provisions of the Civil Discovery Act concerning discovery sanctions” (City of Los Angeles v. Pricewaterhousecoopers, LLP (2024) 17 Cal.5th 46, 50 (Pricewaterhousecoopers) – Moving Defendants ask the Court to impose $3,000.00 in monetary sanctions on Spada based on Spada’s refusal to complete the examination with Dr. Boone.
In Pricewaterhousecoopers, the Supreme Court held: “A court may invoke its independent authority to impose sanctions under sections 2023.010 and 2023.030 only when confronted with an unusual form of discovery abuse, or a pattern of abuse, not already addressed by a relevant sanctions provision.” (Pricewaterhousecoopers, supra, 17 Cal.5th at p. 74.)
Plaintiff’s refusal to complete his examination with Dr. Boone is not “an unusual form of discovery abuse, or a pattern of abuse” (see Pricewaterhousecoopers, supra, 17 Cal.5th at p. 74) supporting an award of monetary sanctions under Code of Civil Procedure section 2023.030. The Court denies Moving Defendants’ request for monetary sanctions.
The Court overrules Moving Defendants' evidentiary objections.
H. Conclusion: Motion to compel neuropsychological examination
The Court GRANTS in part the motion for leave to complete Plaintiff Marius Spada’s neuropsychological independent medical examination filed by Defendants Cal-West Fire Protection Specialist and J.R. Lennen Construction, Inc. on September 17, 2024. The Court orders Plaintiff Marius Spada to attend the remaining portion of his neuropsychological independent medical examination with Kyle Boone, Ph.D., a clinical neuropsychologist, on November 11, 2024 and/or November 12, 2024 (or another date or dates to which the parties agree) at 24564 Hawthorne Blvd., Suite 208 Hillside Village, Building B Torrance, CA 90505. If Plaintiff Marius Spada resides more than 75 miles from the examination location, the Court’s order is conditioned on the advancement by Defendants Cal-West Fire Protection Specialist and J.R. Lennen Construction, Inc. of the reasonable expenses and costs to Plaintiff Marius Spada for travel to the place of examination. Plaintiff Marius Spada may record the entire examination by audio technology.
The Court DENIES Defendants Cal-West Fire Protection Specialist’s and J.R. Lennen Construction, Inc.’s request for monetary sanctions.
Dr. Boone may conduct only the following tests:
• California Verbal Learning Test – II
• DotCounting Test
• MMSE
• Brief Visualspatial Memory Test – Revised
• Trailmaking
• Finger Tapping
• Finger Agnosia
• B Test; Wide Range Achievement Test – IV
• Word Memory Test; Rey Auditory Verbal Learning Test
• Wechsler Memory Scale – III or IV
• Portland Digit Memory Test; Rey-Osterrieth Complex Figure
• Test of Memory Malingering (TOMM)
• Minnesota Multiphasic Personality Inventory – 3; Stroop Test
• Warrington Recognition Memory Test; FAS
• Rey 15-item
• Morel Emotional Numbing Test; Rey Word Recognition Test
• Wisconsin Card Sorting Test
• Coin in Hand Test
• the Victoria Symptom Validity Test
• Shipley-2; Pain Disability Index, and the NAB Shape Learning subtest.
Under California Rules of Court, rule 3.1362(d), “[t]he notice of motion and motion [to be relieved as counsel], the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail." (Cal. Rules of Court, rule 3.1362(d).)
Here, the proofs of service attached to the notice of motion and motion and the declaration do not show service on Spada or James (the plaintiff in the consolidated case). In addition, no proof of service is attached to the proposed order.
The Court continues the hearing on the motion to be relieved as counsel and orders moving counsel to file, at least five days before the continued hearing, proofs of service showing service of the notice of motion and motion, declaration, and proposed order on all parties who have appeared in the consolidated cases.
B. Conclusion: Motion to be relieved as counsel
The Court continues the hearing on the motion to be relieved as counsel to December 23, 2024 at 1:30 p.m. in Department 28 of the Spring Street Courthouse. The Court orders moving counsel to file, at least five days before the continued hearing, proofs of service showing service of the notice of motion and motion, declaration, and proposed order on all parties who have appeared in the consolidated cases.
III. Notice of rulings
Moving parties and counsel are ordered to give notice of these rulings.
Moving parties and counsel are ordered to file the proof of service of these ruling within five days.