Judge: Michael E. Whitaker, Case: 20STCV42482, Date: 2023-01-10 Tentative Ruling

Case Number: 20STCV42482    Hearing Date: January 10, 2023    Dept: 32

PLEASE NOTE:  Parties who intend to submit on this tentative must send an email to the court at sscdept32@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 Court does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the Court may place the motion 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 the parties do not submit on the tentative, they should arrange to appear in-person or remotely which is highly encouraged.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of a motion and adopt the tentative ruling as the order of the Court.  

TENTATIVE RULING

MOTIONS

            Defendant Uber Technologies, Inc. (Defendant) moves to compel Plaintiff Brady Redington (Plaintiff) to submit to mental examination with Brian P. Jacks, M.D., who is a board-certified psychiatrist.  Plaintiff opposes the motion.  Defendant replies.

ANALYSIS

A party seeking to require an adverse party to submit to a mental examination must obtain leave of court.  (Code Civ. Proc., § 2032.310, subd. (a).)  The motion to compel a mental examination must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty of the person who will perform the examination.  (Code Civ. Proc., § 2032.310, subd. (b).)  The court may grant the motion and order the adverse party to submit to a mental examination if (1) the adverse party’s mental condition is “in controversy,” and if (2) there is “good cause” for the mental examination.  (Code Civ. Proc., §§ 2032.020, subd. (a), 2032.320, subd. (a); see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258-259.)

A plaintiff’s mental condition is “in controversy” when the plaintiff alleges a mental injury and the defendant denies the mental injury or the extent of the mental injury.  (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341.)  However, a plaintiff’s mental condition is not “in controversy” when the plaintiff merely alleges past emotional distress.  (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887.)  A plaintiff’s mental condition is also not “in controversy” when the plaintiff merely alleges “garden variety” emotional distress.  When a plaintiff alleges “garden variety” emotional distress, federal courts^[1] require a defendant to additionally show one or more of the following: (1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury; (3) a claim of unusually severe emotional distress; (4) plaintiff’s plan to offer expert testimony to support a claim of emotional distress; (5) plaintiff’s concession that his or her mental condition is “in controversy.”  (Turner v. Imperial Stores (S.D.Cal. 1995) 161 F.R.D. 89, 95; see also Ford v. Contra Costa County (N.D.Cal. 1998) 179 F.R.D. 579, 580; Snipes v. United States (N.D.Cal. 2020) 334 F.R.D. 667, 669-671.)

            First, Defendant has properly set forth the time, place, manner, conditions, scope and nature of the mental examination.  Defendant’s notice of the examination by Brian P. Jacks, M.D. specifies the examination time and date as June 13, 2022 at 9:00 a.m., and the location as 9730 Wilshire Boulevard, Suite 108, Beverly Hills, California 90212.  (Declaration of Janice Y. Walshok, Exhibit D.)  The notice outlines the nature and scope of the examination as consisting of a detailed, face-to-face interview, formal mental status examination, and appropriate, generally accepted standardized written psychological testing, and if there is an issue of memory impairment or head injury, screening cognitive assessment.  (Declaration of Janice Y. Walshok, Exhibit D.)  Defendant’s motion also includes a meet and confer declaration.  (Declaration of Janice Y. Walshok, Exhibit F.) 

Second, Defendant makes a showing of good cause to obtain a mental examination.  Defendant contends that an examination is proper and warranted as Plaintiff has placed his mental injuries at issue.  Plaintiff claims mental injuries.  (Declaration of Janice Y. Walshok, Exhibit B.)  Plaintiff further testified at his deposition that he sustained, and continues to suffer from mental injuries.  (Declaration of Janice Y. Walshok, Exhibit C.)  The Court therefore concludes that Defendant has set forth good cause to compel Plaintiff to submit to the mental examination.

In opposition, Plaintiff asserts Defendant’s request for a psychiatric examination should be denied.  Plaintiff claims Defendant has failed to meet and confer.  As Defendant states in its reply, Defendant served a formal meet and confer letter on Plaintiff’s counsel on April 19, 2022 and participated in further meet and confer correspondence from April 20, 2022 to April 24, 2022.  (Declaration of Janice Y. Walshok, Exhibits F, G.)  This satisfies the meet and confer requirement.  Plaintiff further makes the broad allegation that Defendant has engaged in abusive discovery tactics.  The Court does not find this to be the case.  

Additionally in opposition, Plaintiff argues that Defendant has failed to accompany the instant motion with a separate statement in violation of California Rules of Court, Rule 3.1345.  Rule 3.1345 states that a discovery motion involving a medical examination over objection must be accompanied by a separate statement.  “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.”  (Cal. Rules of Court, rule 3.1345.)  Here, because Plaintiff served objections to Defendant’s notice of mental examination, the separate statement requirement applies here.  (See Declaration of Janice Y. Walshok, Exhibit E.). Yet, the Court finds Defendant has substantially complied with the Rule 3.1345 separate statement requirement through its advanced declaration of its attorney, Janice Y. Walshok, and the attendant exhibits. 

Finally, Plaintiff filed a qualified opposition to Defendant’s motion which requests, if the Court grants Defendant’s motion to compel, that it also issue an order that Defendant meet outlined requirements in scheduling and conducting the examination at issue.  The Court finds that an order compelling compliance with these additional requirements unnecessary.

CONCLUSION AND ORDER

            Therefore, the Court grants Defendant’s motion to compel Plaintiff to appear for the mental examination by Brian P. Jacks, M.D. per Code of Civil Procedure section 2032.310, and  orders Plaintiff to appear for the mental examination within 30 days of notice of the Court’s orders, unless Defendant stipulates otherwise. 

Defendant shall provide notice of the Court’s orders and file a proof of service of such.