Judge: Melvin D. Sandvig, Case: 23CHCV02336, Date: 2024-06-13 Tentative Ruling
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Case Number: 23CHCV02336 Hearing Date: June 13, 2024 Dept: F47
Dept. F47
Date: 6/12/24
Case #23CHCV02336
MOTION FOR
LEAVE TO CONDUCT NEUROPSYCHOLOGICAL EXAMINATION
Motion filed on 2/23/24.
MOVING PARTY: Defendants Satinderjit Singh
and Pannu Trans Inc.
RESPONDING PARTY: Plaintiff Jocelynne
Rosales
NOTICE: ok
RULING: The hearing on the motion will be
continued.
SUMMARY OF ACTION & PROCEDURAL HISTORY
This action arises out of a motor vehicle accident that
occurred on 8/13/22. Plaintiff Jocelynne
Rosales (Ms. Rosales) claims various neuropsychological conditions connected
with the injuries sustained in the accident.
Due to the nature of Ms. Rosales’s claimed injuries
Defendants Satinderjit Singh and Pannu Trans Inc. (Defendants) requested that
she stipulate to a neuropsychological examination. Despite meet and confer efforts, the parties
could not come to an agreement, particularly regarding the duration of the
exam. (Jones Decl., Ex.C-E). The Defendants indicate that the exam should
take as long as reasonably necessary, but also indicate that it will take approximately
8 hours, excluding breaks and depending on Ms. Rosales’s pace. Id.
On the other hand, Ms. Rosales wants the exam limited to 8 hours. Id.
Therefore, on 2/23/24, Defendants filed and served the
instant motion seeking an order granting Defendants leave to obtain discovery
by neuropsychological examination of Ms. Rosales administered by Dr. Ted D.
Evans, Ph.D., a board-certified clinical psychologist licensed to practice in
the state of California, at 5363 Balboa Blvd., Encino, California 91316 on a
date and time to be determined by the Court.
Ms. Rosales has opposed the motion and requested sanctions against “Defendant
and/or its attorneys” in the amount of $5,460.00. Defendants have filed a reply to the
opposition.
ANALYSIS
A defendant may obtain a mental examination of a
plaintiff if the plaintiff has placed his or her mental condition in
controversy. See CCP 2032.020(a).
CCP 2032.310 provides:
“(a) If any party desires to obtain
discovery by a physical examination other than that described in Article 2
(commencing with Section 2031.210), 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.” (emphasis added)
The court may only grant a motion for such an exam upon a
showing of good cause. CCP 2032.320(a).
Here, Ms. Rosales does not dispute good cause exists for a
neuropsychological/mental exam. Rather,
Ms. Rosales objects to the duration of the exam possibly exceeding 8 hours; the
examiner taking her oral medical history; and Ms. Rosales and her counsel not
receiving the “raw data” from Defendants’ examiner. (See Opposition, generally).
Even if Ms. Rosales had not essentially conceded that
good cause exists for a neuropsychological exam of Ms. Rosales, the Court finds
such good cause as Ms. Rosales has placed her neuropsychological condition, and
alleged neuropsychological injuries sustained in connection with the subject accident,
at issue. Ms. Rosales has filed this
action to recover for personal injuries, damages, and suffering connected to a
possible brain-related or neuropsychological injury allegedly inflicted by
Defendants. Additionally, Ms. Rosales
has recently undergone neuropsychiatric examinations, and it is likely that
Plaintiffs’ counsel intends to use any corresponding reports or evaluations of
those examinations to prove damages at trial.
As such, Defendants are entitled to conduct discovery
into the issues related to these claims.
Ms. Rosales cites no authority which sets forth a
specific time limitation for the proposed exam.
As such, the Court finds that an estimation of 8 hours for the exam,
excluding breaks and depending on Ms. Rosales’s pace to be appropriate with the
caveat that if Ms. Rosales feels the exam proceeding has become abusive, including
excessively lengthy, she may terminate the exam and seek a protective order
from the Court.
With regard to her objection to the taking of an oral
medical history at the exam, Ms. Rosales cites authority regarding physical
examinations, not mental and/or neuropsychological examinations. (See Opposition, p.3:25-p.6:7). Ms. Rosales cites no authority which precludes
the taking of a medical history at a mental exam. As such, the Court finds that the Dr. Evans
should be permitted to ask Ms. Rosales about the general health of family
members and the existence of medical or mental conditions and whether treatment
was received. However, Ms. Rosales is
not to be questioned regarding the specifics of any treatment, names of
treating physicians and details of the medical or mental conditions of family
members as the rights of privacy of third parties are in issue. Additionally, Ms. Rosales is not to be
questioned about her conversations with her counsel of record or any person
affiliated with her counsel or her counsel’s offices. Also, Plaintiff shall not be questioned
concerning her counsel’s evaluation of any of Ms. Rosales’s claims against any
of the Defendants, nor is Ms. Rosales to be questioned about any discussions
she has had with her counsel regarding such evaluations. Nothing in the order shall be construed as a
waiver of Ms. Rosales or her family’s privacy rights, medical privacy rights,
doctor patient privileges, psychotherapist patient privileges. Further, the order compelling the
neuropsychological exam of Ms. Rosales shall not be construed as a waiver of
Ms. Rosales’s right to challenge the admissibility or appropriateness of any
opinion or contention.
Ms. Rosales has also failed to provide any authority
which would allow her or her counsel, rather than her neuropsychological expert
to receive the raw test data. The case
relied on by Ms. Rosales, Suezaki (1962) 58 C2d 166, concerns raw video
footage taken sub rosa not raw data from a neuropsychological exam.
The Court finds that Ms. Rosales’s request for sanctions
is without merit. Based on the failed
meet and confer efforts between counsel for the parties, Defendants
appropriately filed the instant motion. See
CCP 2032.310(a), (b); (Jones Decl., Ex.C-E).
Further, the Court finds the amount of sanctions requested to be
excessive under the circumstances.
The Court is inclined the grant the request for an order granting
Defendants leave to conduct a neuropsychological examination of Plaintiff
Jocelynne Anay Rosales to be administered by Dr. Ted D. Evans, Ph.D. However, the proposed order submitted by
Defendants does not comply with the requirements set forth in CCP 2032.320(d)
which provides:
“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.”
CONCLUSION
Based on the foregoing, the hearing on the motion will be
continued approximately one month.
Counsel for the parties are ordered to meet and confer
regarding the scheduling of the neuropsychological examination of Ms. Rosales
by Dr. Evans on a mutually agreeable date and time and the submission of a
proposed order which complies with the statutory requirements and the above
findings by the Court.
If the parties come to an agreement, they may submit a stipulation
and proposed order and the continued hearing date will be placed off
calendar. If not, at least 10 court days
before the continued hearing date, the parties are ordered to submit further
briefs on the above issues, limited to 10 pages each, along with their version
of the proposed order regarding the neuropsychological examination of Ms.
Rosales by Dr. Evans.
The Court further notes that neither Defendants’ counsel
nor Plaintiffs’ counsel have electronically bookmarked the exhibits attached to
their papers as required by CRC 3.1110(f)(4).
Defendants’ papers contain no electronic bookmarks. While Ms. Rosales’ opposition contains
electronic bookmarks regarding the content of Exhibit 3, but not electronic
bookmarks linked to the first page of each exhibit as required. Id.
The parties are warned that failure to comply with this
requirement in the future may result in matters being continued so that papers
can be re-filed in compliance, papers not being considered and/or the imposition of
sanctions.