Judge: Maurice A. Leiter, Case: 21STCV37404, Date: 2023-01-13 Tentative Ruling

Case Number: 21STCV37404    Hearing Date: January 13, 2023    Dept: 54

Hearing Date: January 13, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Mental Examination of Plaintiff;

Motion to Compel Neurological Examination of Plaintiff

Moving Party: Defendants The Milken Family Foundation, Gary Panas and Larry Lesser

Responding Party: Plaintiff Gayl Abbey

T/R:     DEFENDANTS’ MOTION TO COMPEL MENTAL EXAMINATION IS GRANTED.

DEFENDANTS’ MOTION TO COMPEL NEUROLOGICAL EXAM IS DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

            The Court considers the moving papers, opposition, and replies.

“(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.”  (CCP § 2032.310.)  “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (CCP § 2032.320(a).) 

            Defendants move to compel Plaintiff to sit for a mental exam and a neurological exam. Plaintiff has placed her mental condition at issue in this action; she claims emotional distress damages. This is good cause to order an independent mental examination. Defendants’ motion to compel the mental examination complies with CCP § 2032.310(b).

            Defendants assert Plaintiff has placed her neurological condition at issue because Plaintiff stated in discovery that she suffers from “loss of concentration, forgetfulness, and lessened ability to think clearly;” she stated “I don’t know” a significant number of times at deposition; and her medical records indicate diagnoses of memory loss and concussion. In opposition, Plaintiff asserts the examinations are redundant and the neurological exam is not supported by good cause.

            That Plaintiff has shown some symptoms of memory loss is not sufficient to order an invasive and redundant neurological exam. Should the mental exam indicate a clear and definite need for a neurological exam, the issue may be revisited.

            Defendants’ motion to compel mental examination is GRANTED. Defendants’ motion to compel neurological exam is DENIED.