Judge: Michelle C. Kim, Case: 19STCV20112, Date: 2023-04-25 Tentative Ruling

Case Number: 19STCV20112    Hearing Date: April 25, 2023    Dept: 31

                                      SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Michael Garfoot (“Plaintiff”), et al. filed this action against Defendants Brenden Otero and Harold Otero (collectively, “Defendants”) for damages arising from a motor vehicle accident. 

At this time, Defendants move to compel Plaintiff to submit to (1) an orthopedic examination by Kevin J. Kulwicki, M.D., (2) neuropsychological examination by Terence J. Young, Psy.D, and (3) a physical examination by Robert W. Graebner, M.D.  Each exam is to take place in Milwaukee, Wisconsin within 75 miles of Plaintiff’s residence.  The motion is unopposed.    

2. Motion to Compel Physical and Mental Examinations of Plaintiff

CCP § 2032.220 states:

(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:

(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.

(2) The examination is conducted at a location within 75 miles of the residence of the examinee.

CCP § 2032.250 provides that, when a plaintiff fails to respond to a demand, or refuses to submit to the physical examination, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. 

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).)  Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) 

The examination will be limited to whatever condition is “in controversy” in the action.  (CCP §2032.020(a).)  This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.  (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)  Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)  Discovery responses can also frame the issues regarding the injuries and damages alleged. 

Here, Defendants are seeking to compel three exams of Plaintiff.  Concerning the physical examinations of Plaintiff, Defendants are entitled to one physical exam.  Defendants must then establish good cause for any additional exams.  Defendants assert in a conclusory manner that Defendants cannot properly evaluate the case without multiple medical examinations.  Further, Defendants assert that Plaintiff has placed his physical and mental condition in controversy.  However, Defendants do not otherwise articulate why one physical examination is not sufficient to evaluate Plaintiff’s physical condition.  Defendants, therefore, fail to establish good cause for multiple physical exams of Plaintiff.  Further, although Defendants are entitled to one physical exam of Plaintiff, the Court will not decide for Defendants which of the two physical exams should be compelled. 

As to the request to compel a mental exam of Plaintiff, Defendants aver that Plaintiff is claiming to have suffered a traumatic brain injury, headaches, concussion, memory loss, speech issues, loss for words, depression, and anxiety as a result of the accident.  Defendants argue that Plaintiff has thus placed her mental condition in controversy, so there is good cause to compel the requested exam.  Plaintiff does not oppose the motion or dispute putting her mental condition at issue.  Therefore, the Court finds good cause for the mental examination sought.

Nonetheless, “[CCP] Section 2032.320 governs the order granting a motion for a mental examination. To protect the plaintiff's privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause. [Citation.] In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination: ‘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.’ (§ 2032.320, subd, (d).)  (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259 [emphasis in original].)  In Carpenter, the defendant argued that simply naming the types of tests to be performed, e.g., “emotional and cognitive functioning” tests, as opposed to the exact tests themselves, was sufficient in the context of a mental health examination; however, the Court of Appeals disagreed and noted that the statute required the defendant to specify the “diagnostic tests and procedures,” which means they must be listed by name.  (Id. at 260.)  

Defendants, in this case, do not list the actual diagnostic tests expected to be used in a mental exam of Plaintiff in their motion or demands.  (Carpenter, 141 Cal.App.4th at 259; Ibid.)  Defendants must specify the diagnostic tests and procedures to be performed, conditions, scope and nature of the examination.  (Carpenter, 141 Cal.App.4th at 259.)  Accordingly, Defendants’ motion does not comply with CCP § 2032.320.

While Defendants may establish good cause for a mental exam, the Court, in granting a motion to compel a mental examination, must list in its order the names of the tests to be performed, which it cannot do if the moving party has not provided them.  (Id., supra, at 260-262.) 

Based on the foregoing, Defendants’ motion to compel Plaintiff’s physical and mental exams is denied without prejudice. 

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 25^th day of April 2023