Judge: Loren G. Freestone, Case: 37-2021-00050284-CU-PO-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00050284-CU-PO-CTL MORALES VS BURCH [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Cosmic Concepts Ltd.'s motion to compel Plaintiff Ismael Morales' mental examination is GRANTED.

A mental examination may be ordered when the mental condition of a party is 'in controversy in the action' and 'good cause' for the examination is shown. (Code Civ. Proc., §§ 2032.020, subd. (a), 2032.320, subd. (a).) Here, Morales' mental condition is in controversy because he is claiming the accident caused him a traumatic brain injury with lasting neuropsychological and cognitive deficits. Moralas has also designated a neuropsychology expert to testify on his behalf regarding these issues, and therefore there is good cause to permit Cosmic's neuropsychology expert (Dr. J. Vincent Filoteo) to explore the nature and extent of Morales' claimed mental issues as part of its defense.

Morales argues that that fact discovery has closed. However, the motion/discovery cut-off date is currently June 14, 2023. (ROA #149–150.) The motion and IME are therefore timely.

Morales also asserts that Cosmic did not timely serve its supplemental designation identifying Dr. Filoteo as a retained expert. Cosmic asserts that the supplemental designation was timely served. It is unnecessary to resolve this factual dispute for purposes of this motion. The statute requires that the examination 'be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.' (Code Civ. Proc., § 2032.020, subd. (c)(1).) There is no requirement that the examiner be designated as a retained expert to perform the examination. If Dr.

Filoteo was not properly designated, that may impact whether he will be permitted to testify regarding his examination, but that is a different issue.

Accordingly, the motion to compel is granted. Morales shall appear for a mental examination with Dr.

Filoteo on March 4, 2024 at 9:00am, as set forth in the Second Notice of Independent Medical Examination.

Cosmic shall submit a revised proposed order within 5 days that complies with Code of Civil Procedure section 2032.320, subd. (d).

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