Judge Lynette Gridiron Winston, Case Number: 21STCV10402, Date: 2024-12-18 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 21STCV10402, Date: 2024-12-18 Tentative Ruling

Case Number: 21STCV10402 Hearing Date: December 18, 2024 Dept: 6

CASE NAME: Alonso Rivera v. Quemetco, Inc., et al.

EPI Construction, Inc.’s Motion to Compel Mental Examination of Plaintiff, Alonso Rivera

TENTATIVE RULING

The Court GRANTS EPI Construction, Inc.’s motion to compel mental examination of Plaintiff Alonso Rivera. Plaintiff must appear for a mental examination as described herein and in the moving papers by Manuel Saint Martin, M.D., J.D., at 8616 La Tijera Blvd., Suite 400, Los Angeles, CA 90045, (310) 641-7311, within 30 days of the Court’s order.

Plaintiff shall submit a proposed order in compliance with Code of Civil Procedure section 20232.320, subd. (d), within five calendar days of this order.

EPI Construction, Inc. is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a personal injury action. On March 17, 2021, plaintiff Alonso Rivera (Plaintiff) filed this action against defendants Quemetco, Inc. (Quemetco), John Doe 1, John Doe 2, and Does 3 to 100, alleging causes of action for negligence, premises liability, and negligent hiring, training, retention & supervision. On February 17, 2022, Plaintiff filed a Doe amendment substituting Waste Management Recycling and Disposal Services of California, Inc. in place of Doe 2.

On April 23, 2021, Quemetco filed a cross-complaint. On March 14, 2022, Quemetco filed its operative First Amended Cross-Complaint against cross-defendant EPI Construction, Inc. and Roes 1 through 10, alleging causes of action for breach of contract, express contractual indemnity, breach of contract, express contractual indemnity, equitable indemnity/apportionment of fault, contribution, and declaratory relief.

On May 25, 2021, EPI Construction, Inc. (EPI) filed a cross-complaint. On October 8, 2021, EPI filed its operative First Amended Cross-Complaint against cross-defendants G.D. Heil, Inc, Quemetco, and Moes 1 through 50, alleging causes of action for equitable indemnity, contribution, declaratory relief, express contractual indemnity, breach of contract, and negligence. On January 13, 2022, EPI filed an amendment to its First Amended Cross-Complaint, naming Waste Management Recycling and Disposal Services of California, Inc., as a cross-defendant.

On March 3, 2022, USA Waste of California, Inc. filed a cross-complaint against Roes 1 through 20, alleging causes of action for implied indemnity, contribution and indemnity, declaratory relief, express indemnity, breach of contract, and duty to defend.

On June 6, 2022, Cypress Insurance Company, administered by Berkshire Hathaway Homestate Companies, filed a complaint-in-intervention against Quemetco, Inc., John Doe 1, John Doe 2, and Does 3 through 100, for recovery of workers’ compensation benefits.

On November 14, 2024, EPI moved to compel a mental examination of Plaintiff. The motion is unopposed.

LEGAL STANDARD

(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.)

(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, subd. (a).)

DISCUSSION

Meet and Confer

The Court finds EPI’s efforts to meet and confer before bringing this motion satisfactory. (Daley Decl., ¶¶ 5-6; Code Civ. Proc., § 2032.310, subd. (b).)

Analysis

EPI seeks an order requiring Plaintiff to submit to an independent mental examination at the office of Manuel Saint Martin, M.D., J.D., 8616 La Tijera Blvd., Suite 400, Los Angeles, CA 90045, (310) 641-7311. EPI states that it served a demand for mental examination on Plaintiff on October 18, 2024. (Daley Decl., ¶ 2, Ex. A.) EPI further states that Plaintiff failed to object to the demand and to appear for his examination on November 8, 2024. (Daley Decl., ¶ 6.)

EPI contends good cause exists to take a mental examination of Plaintiff based upon Plaintiff’s claim for extraordinary damages related to anxiety and depression suffered as a result of the underlying accident. (See Daley Decl., Ex D.) EPI states that the proposed mental examination will be conducted by Dr. Manuel Saint Martin under standard office conditions, and will consist of taking the history, present status, examination, and review of medical records, and that no other person may attend on behalf of any defendant. (Daley Decl., Ex. A.) EPI indicates that the scope of the examination will consist of a psychiatric interview in which Dr. Saint Martin will collect information about Plaintiff’s complete medical history, which is important because systemic conditions can affect psychological functioning separate from a traumatic injury. (Daley Decl., Ex. C.) EPI indicates that psychological testing is also warranted, and that Dr. Saint Martin will utilize some or all of the following psychological tests, namely the Minnesota Multiphasic Personality Inventory Third Edition Spanish Version, Millon Clinical Multiaxial Inventory Fourth Edition Spanish Version, Personality Assessment Inventory Spanish Version, Structured Interview of Malingered Symptoms Spanish Version, and the Patient Pain Profile Spanish Version. (Daley Decl., Ex. C.) EPI states that the entire examination should last approximately four to six hours, that breaks for personal comfort or necessity may be taken as needed, and that the interview will be audio-recorded and available to all parties. (Daley Decl., Ex. C.)

The Court finds EPI’s motion well taken and that good cause exists to permit a mental examination of Plaintiff. EPI presented evidence indicating that Plaintiff seeks emotional distress damages over and above those typically associated with his injuries, which the Court finds meets the minimum evidence necessary to show good cause. (See Daley Decl., Ex. D; see also Compl., ¶¶ 20, 33-34, 46-47 [Plaintiff alleging permanent and serious emotional injuries requiring psychologists and therapists for treatment].) EPI’s motion specifies the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty of the person conducting the examination. (Daley Decl., Exs. A-C.) Notice of the motion was given to Plaintiff and all parties. (Motion, pp. 44-45 of pdf; Code Civ. Proc., § 2032.310, subd. (c).) The Court further construes Plaintiff’s lack of opposition as a tacit admission that EPI’s arguments are meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation]”].)

Based on the foregoing, the Court GRANTS EPI’s motion. Plaintiff must appear for a mental examination by Manuel Saint Martin, M.D., J.D., at 8616 La Tijera Blvd., Suite 400, Los Angeles, CA 90045, (310) 641-7311, within 30 days of the Court’s ruling.

CONCLUSION

Plaintiff shall submit a proposed order in compliance with Code of Civil Procedure section 20232.320, subd. (d), within five calendar days of this order.

EPI Construction, Inc. is ordered to give notice of the Court’s ruling within five calendar days of this order.