Judge: Lisa R. Jaskol, Case: 22STCV19521, Date: 2023-12-13 Tentative Ruling
Case Number: 22STCV19521 Hearing Date: December 13, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On June 15, 2022, Plaintiff John Shlomof (“Plaintiff”) filed this action against Defendants Michael McKenna (“Defendant”) and Does 1-50 for motor vehicle tort and general negligence.
On July 29, 2022, Defendant filed an answer.
On November 14, 2023, Defendant filed a motion for leave to obtain a mental examination of Plaintiff, to be heard on December 13, 2023. Plaintiff has not filed an opposition.
Trial is currently scheduled for March 28, 2024.
PARTY’S REQUEST
Defendant requests that the Court order Plaintiff to appear for a mental examination to be conducted by Charles H. Hinkin, Ph.D., at 921 Westwood Blvd., Ste 208, Los Angeles, CA 90024 on January 15, 2024, at 8:30 a.m.
LEGAL STANDARD
Code of Civil Procedure section 2032.310 provides:
“(a) If any party desires to obtain discovery . . . 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 . . . 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. . . .”
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
Defendant asks the Court to order Plaintiff to appear for a mental examination to be conducted by Charles H. Hinkin, Ph.D., whose specialty is neuropsychology, on January 15, 2024, at 8:30 a.m. in Los Angeles. Defendant states that the purpose of the examination is to determine, evaluate, and assess Plaintiff’s mental condition and claims of neurocognitive and emotional injury. The examination will include Plaintiff’s claims of continuing, ongoing, or permanent problems, if any, including claims for future care.
The motion lists the tests that Dr. Hinkin may administer during the examination, as well as terms and conditions of the examination. As Plaintiff has not filed an opposition to the motion, Plaintiff has not shown any need for different terms and conditions.
However, Defendant asserts that Plaintiff may audio record only the interview portion of the examination and not the testing portion. Code of Civil Procedure section 2032.530, subdivision (a), provides: “The examiner and examinee shall have the right to record a mental examination by audio technology.” The Court denies Defendant’s request to limit Plaintiff’s statutory right to record the examination – including the interview and testing portions -- by audio technology. Plaintiff may record the entire examination using audio technology.
Plaintiff has put his mental condition at issue by alleging that, as a result of the accident, he has experienced memory loss, dizziness, sensory impairments, and a decrease in his ability to think critically, plan and organize. The Court finds good cause and grants the request for a mental examination.
At the December 13, 2023 hearing on the motion, Plaintiff's counsel appeared and asked the Court to rule, under Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, that Dr. Hinkin must transmit the raw data from his examination directly to Plaintiff's counsel. Plaintiff's counsel noted that, on December 12, 2023, he filed a "Notice of Non-Opposition" to Defendant's motion and, in the notice, asked the Court to make this ruling. The Court took a brief recess, reviewed the notice of non-opposition, and then ruled that Plaintiff had failed to make a showing of need for the raw data, preventing the Court from balancing Plaintiff's need against Dr. Hinkin's interest in complying with his professional and ethical obligations. The Court therefore denied Plaintiff's request for an order that Dr. Hinkin disclose the raw data directly to Plaintiff's counsel. Instead, Dr. Hinkin will disclose the data, upon Plaintiff's request, to a qualified licensed psychologist of Plaintiff’s choosing.
CONCLUSION
The Court GRANTS IN PART Defendant Michael McKenna motion for leave to obtain a mental examination of Plaintiff John Shlomof. The Court orders Plaintiff John Shlomof to attend a mental examination conducted by Charles H. Hinkin, Ph.D., at 921 Westwood Blvd., Ste 208, Los Angeles, CA 90024 on January 15, 2024, at 8:30 a.m., or at another place and time on which the parties agree.
The Court DENIES Defendant Michael McKenna's request for an order that Plaintiff John Shlomof may use audio technology to record only the interview portion of the examination. Plaintiff may use audio technology to record the entire examination.
The Court DENIES Plaintiff John Shlomof's request for an order that Charles H. Hinkin, Ph.D., must transmit the raw data resulting from the examination directly to Plaintiff's counsel. Instead, the Court orders that Dr. Hinkin will disclose the data, upon Plaintiff's request, to a qualified licensed psychologist of Plaintiff’s choosing.
The examination may include only the following tests:
B- Test; Beck Anxiety Inventory (BAI); Beck Depression Inventory-II (BDI-II); Behavioral Rating Inventory of Executive Function; Boston Naming Test-2; Brief Test of Attention; BVMT-R; CVLT-II; COWAT, CPT-II; DKEFS; DAPS; Grooved Pegboard, Hand Dynamometer; HVOT, Frontal Systems Behavioral Scale, MCMI-III; MMPI-2/RF; Rey Complex Figure Test, Rey 15 Item Test, Stroop Task, SIMS; TOMM; TOPF, TSI-2; Trail Making Test, VSVT; WAIS-IV; WMS–IV; WRAT-IV; WCST, and Word Memory Test.
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.