Judge: Michael E. Whitaker, Case: 21STCV05930, Date: 2023-02-03 Tentative Ruling

Case Number: 21STCV05930    Hearing Date: February 3, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, 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 the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Rodrigo Castillo (Plaintiff) sued Defendants Steven Fein and Sheila Fein (collectively, Defendants) based injuries Plaintiff alleges he sustained when he was trimming a tree for Defendants and fell out of the tree. Defendants move to compel Plaintiff to attend a neuropsychological examination conducted by Jose Fuentes, Ph.D. Plaintiff opposes the motion. Defendants reply.

On January 13, 2023, the Court continued the hearing date for the instant motion to February 2, 2023, to allow Defendants time to cure a procedural defect with the motion by submitting a separate statement in compliance with California Rules of Court, rule 3.1345.  Defendants filed a supplemental reply and separate statement on January 26, 2023.

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.)

1. In Controversy

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.)

1. Good Cause

There is “good cause” for a mental examination when the defendant “produce[s] specific facts justifying [the mental examination]” and when the mental examination is “relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.”  (Vinson v. Superior Court, supra, 43 Cal.3d at p. 840.)  The “good cause” requirement checks for unnecessary intrusions and potential harassment by defendants against plaintiffs who have placed their mental conditions in controversy.  (See Carpenter v. Superior Court, supra, 141 Cal.App.4th at p. 259; Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255; Vinson v. Superior Court, supra, 43 Cal.3d at p. 840.)

Here, Plaintiff contends he suffers from a traumatic brain injury as a result of the subject incident.  (See Declaration of James W. Gates, ¶¶ 9, 10, 20, Exhibit G.)  Defendants thus argue that Plaintiff has placed his mental condition in controversy.

In opposition, Plaintiff argues Defendants have failed to show good cause for a mental examination of Plaintiff.  Specifically, Plaintiff argues he has already agreed to submit to an orthopedic examination with Dr. Andrew Hsu, and a neurological examination with Dr. Richard Gluckman.  According to Plaintiff, Defendants have thus not shown the need for another mental examination based on Plaintiff’s claimed injuries.  (Declaration of Neer Lerner, ¶¶ 5, 6, Exhibit 1.)

In reply, Defendants note that the orthopedic and neurological examinations, already ordered by the Court and completed, were not mental examinations.  Accordingly, the Court finds Plaintiff’s complaints of traumatic brain injury as a result of the subject incident place his mental health in controversy which establishes good cause for Defendants’ requested mental examination of Plaintiff.

Plaintiff further argues that the conditions sought by Defendants for the mental examination are oppressive and over broad with respect to the eight-to-nine-hour timeframe for the examination listed in the notice of mental examination.  (See Declaration of James W. Gates, Exhibit B.)

In reply, Defendants argue that the scope and timeframe of the requested examination is reasonable and consistent with professional standards.  Defendants advance the declaration of Jose L. Fuentes, Ph.D. (Fuentes) in support of their proposition.  Fuentes states the neuropsychological evaluation, as detailed in the notice of examination, will include a clinical interview and a battery of neuropsychological tests as listed in the notice.  (See Declaration of Jose L. Fuentes, Ph.D., ¶ 5; see also Declaration of James W. Gates, Exhibit B.). Fuentes further avers that the standard of practice for Clinical Neuropsychologists is to allow sufficient time for a thorough examination, which frequently takes at least 8-9 hours.  (Declaration of Jose L. Fuentes, Ph.D., ¶ 3.)  Fuentes concludes that eight hours is a reasonable minimal requirement, and more time may ultimately be required to fully evaluate the neuropsychological deficits in question.  (Declaration of Jose L. Fuentes, Ph.D., ¶ 4.)  Consequently, the Court finds that the time frame for the subject mental examination of eight hours is reasonable. 

Finally, Plaintiff argues that the mental examination cannot be subject to video recording, to which Defendants agree that Fuentes will not make a video recording of the examination.

CONCLUSION AND ORDER

Therefore, the Court grants Defendants’ motion to compel Plaintiff to submit to the neuropsychological examination by Fuentes on March 27, 2023, the manner, diagnostic tests and procedures, conditions, scope and nature of which are to be as set forth in the June 9, 2022, Demand for Neuropsychology Exam.  However, the Court orders the neuropsychological examination is limited to 8 hours, excluding breaks, and orders that no party may record the neuropsychological examination by video. 

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.