Judge: Mark C. Kim, Case: 20LBCV00562, Date: 2022-08-11 Tentative Ruling

Case Number: 20LBCV00562    Hearing Date: August 11, 2022    Dept: S27

1.     Background Facts

Plaintiff, Jose Davila filed this action against Defendant, Weber Distribution Warehouses, Inc. (“WDWI”) for nuisance, negligence, IIED, NIED, and trespass arising out of Defendant’s operation of a noisy facility near Plaintiff’s home.  Plaintiff filed his complaint on 12/31/20.  On 5/13/21, the Court granted Defendant’s motion to quash.  The motion was made and granted on the ground that the named defendant does not reside at the location where it was served.  On 6/22/21, the Court granted Plaintiff’s motion for leave to amend the complaint to name Defendant, Weber Distribution, LLC.

2.     Motion to Compel IME

a.     Parties’ Positions

Defendant moves to compel Plaintiff to sit for a mental examination, contending his claimed emotional distress entitles Defendant to such examination.  Plaintiff opposes the motion.  He concedes an examination is proper and necessary, but contends Defendant has refused to agree to reasonable limitations and conditions, such that the motion should be denied.

b.     Initial Note

Plaintiff’s opposition was due on or before 7/29/22.  Plaintiff filed his opposition one court day late, on 8/01/22.  Plaintiff’s attorney declares he had COVID and was unable to timely prepare the opposition.  The Court has considered the late-filed opposition due to the circumstances. 

c.     Overbroad and Exceeds Scope

Plaintiff first argues the request for an examination is overbroad and exceeds the scope of any necessary examination.  The discussion in this section of the brief, however, is silent as to how the request is overbroad and/or exceeds the scope of what is necessary.  The discussion contains authority, but no argument.

d.     Infringes of Health and Privacy

Plaintiff fails, in this section of his brief, to show how the request infringes on his heath or privacy.

e.     Due Process

Plaintiff’s Section C in his brief is titled “The independent medical examination violates the due process right of Plaintiff.”  Plaintiff then provides a code section saying he is entitled to a copy of a written report from the physician.  Plaintiff failed to address due process and it is not clear what Plaintiff is requesting as a condition of the examination.

f.      Recording of Examination

Plaintiff asks that the examination be recorded and that he be provided a copy of the recording.  Pursuant to CCP §2032.530(a), both the examiner and the examinee have the right to record the examination by audio, but not video, technology.  Plaintiff is free to exercise his right to record the examination if he chooses to do so.

g.     Counsel Present at Examination

Plaintiff cites authorities permitting the examinee’s attorney to be present at a physical examination.  These authorities do not apply to mental examinations.  See Golfland Entertainment v. Superior Court (2003) 108 Cal.App.4^th 739, 747-748, holding that the need for rapport between the examiner and the examinee in a mental examination precludes attorney presence, and also noting that the Code provides for such presence in connection with a physical, but not mental, examination.

h.     Credentials of Examiner

Plaintiff argues the examiner may not be independent and therefore may not be qualified to conduct the examination.  CCP §2032.020(c)(1) permits a mental examination by a licensed physician or a licensed clinical psychologist with a doctor degree and at least five years’ experience diagnosing mental and emotional disorders.  The Mahoney Declaration in support of the motion shows that Defendant’s expert, Dr. Teri Pokrajac, meets this criteria.  Pursuant to Mercury Cas. Co. v. Superior Court (1986) 179 Cal.3d 1027, 1034, there is no requirement that the examiner be neutral; indeed, it is common that the examiner is NOT neutral, and the examinee is free to make any such argument at trial.

i.      Sanctions

The final issue is whether sanctions should be imposed.  Defendant does not seek sanctions with the moving papers.  Plaintiff seeks sanctions with the opposition, contending the motion is an improper misuse of the discovery process.  Because the motion is granted, the request for sanctions is denied.

j.      Conclusion

Defendant’s motion to compel an IME is granted.  The Court will allow Plaintiff to record the examination, as he is permitted to do per Code.  The Court rejects each of Plaintiff’s other arguments in opposition to the motion and proposed conditions/limitations on the examination.  Plaintiff is ordered to attend his IME with Dr. Teri Pokrajac on 8/15/22 at 9:00 a.m. at 1001 Dove Street, Suit 110, Newport Beach, CA 92660.    

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.