Judge Michelle C. Kim, Case 20STCV00468 2023-04-24 Tentative Ruling

On January 6, 2020, Plaintiff Elizabeth Amezquita (“Plaintiff”) filed this action against Defendant Kenneth Douglas Kochakji (“Defendant”) for injuries arising from a motor vehicle vs. pedestrian accident.

On October 13, 2022, Defendant filed a motion for leave to compel Plaintiff’s neurological and mental/neuropsychological examinations. Plaintiff opposes the motion, and Defendant filed a reply. This matter was last heard on April 12, 2023, where it was continued to April 24, 2023, at Defendant’s request. On April 14, 2023, Defendant filed a sur-reply to the motion.

Additionally, on October 21, 2022, Defendant filed a motion to compel the deposition of Dr. Ata Kashani (“Dr. Kashani”), who treated Plaintiff after the subject accident. Plaintiff opposes the motion, and Defendant filed a reply.

2. Motion to Compel Mental Examination and Additional Physical Examination

A court order is required¿to obtain a party’s mental or additional physical examination. (Code Civ. Proc. § 2032.310(a).) Such an order may be made only after notice and hearing, and for “good¿cause shown.” (Code Civ. Proc., §§ 2032.310(c), 2032.320(a).)¿¿¿¿

The motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination.” (Code Civ. Proc., § 2032.310(b).) “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.” (Code Civ. Proc., § 2032.320(d).) “The court is to describe¿in detail¿who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. The way to describe these ‘diagnostic tests and procedures’—fully¿and¿in detail—is to list them by name.” (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 260.)¿¿

¿¿ The moving party¿must support their motion with a meet and confer declaration. (Code Civ. Proc., § 2032.310(b).) A meet and confer declaration must state facts “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”¿ (Code Civ. Proc., § 2016.040.)¿¿¿¿

¿¿ The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc., § 2032.020(a).) This means that the specific injury or subject of the litigation must be directly invoked by the examination. (See¿Roberts v. Superior Court¿(1973) 9 Cal.3d 330, 337.) By alleging a causal link between the emotional distress and the defendant's conduct, a plaintiff “implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.” (Vinson v. Superior Court¿(1987) 43 Cal.3d 833, 840.) However,¿a mental examination is only appropriate where the plaintiff alleges continuing emotional distress. (Doyle v. Sup. Ct. (Caldwell)¿(1996) 50 Cal.App.4^th¿1878, 1886-1887.) “While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.” (Vinson,¿supra, 43 Cal.3d at 840.)

The Court notes that the meet and confer requirement has been satisfied. (See Weixel Decl., ¶ 8)

Defendant moves to compel Plaintiff to undergo a neurological exam with Dr. Kenneth Nudleman and a mental/neuropsychological examination with Dr. Kyle Boone because Plaintiff has alleged she continues to suffer from neurological and mental injuries, which include, but are not limited to headaches, anxiety, pain and loss of sensation in the extremities, severe emotional distress, difficulty sleeping, and cognitive impairment. (See Weixel Decl., ¶ 4.) In addition, as a result of the subject incident, Plaintiff suffers from forgetfulness and other memory issues, and has been diagnosed with concussions, a traumatic brain injury, depression, and memory and cognitive decline. (Id. at ¶ 5.) While Plaintiff has had an orthopedic medical examination, she has not been examined as to her neurological and mental injuries. Defendant contends that Plaintiff has put those conditions at issue, and that those examinations are necessary to prepare for trial.

Plaintiff generally contends that Defendant failed to establish good cause to compel Plaintiff’s neurological and mental examinations.

The Court disagrees. The Court finds that Defendant has shown good cause to allow for Plaintiff’s neurological and mental examinations, as Plaintiff represents that she continues to suffer from neurological and mental injuries as a result of the subject incident. Plaintiff has placed her neurological and mental condition at issue, and those examinations are necessary for Defendant to prepare for trial.

Moreover, Defendant asserts that the two exam are separate and distinct from a prior orthopedic exam of Plaintiff and from each other. Defendant asserts that the neurological exam concerns physical conditions, while the mental/neuropsychological exam concerns psychological conditions.

CCP § 2032.320(d) requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.” As to the exam with Dr. Boone, Defendant indicates the scope of the exam in the moving papers. Defendant listed the potential tests in the Renewed Demand for Neurological Exam filed with the motion. (Mot. Exh. E.) As to the exam with Dr. Nudleman, Defendant indicates the scope of the exam and lists the potential tests in Defendant’s sur-reply. (Sur-reply at pp. 3-4:23-20, Exh. B.) Defendant, therefore, has met his obligations in this regard.

Additionally, Plaintiff requests limitations on the examinations if the motion is granted. Below are the specific limitations that were discussed in Plaintiff’s Opposition.

Plaintiff suggests that Defendant’s examiners may ask questions that are not relevant to the subject matter, which include questions regarding Plaintiff’s truthfulness and sex life, apparently questions that are asked on the “MMPI 2 ND 3.” (See Plaintiff’s Opposition at page 6, line 2.). It is unclear if the “Minnesota Multiphasic Personality Inventory – 3” as listed by the Defense is the test that Plaintiff references as MMPI 2 ND 3. However,at this time, there is no indication that Defendant’s examiners will ask that suggested line of questioning, as both of the demands for examinations state that the exams will relate to Plaintiff’s injuries arising from the subject incident. (See Weixel Decl., Exhs. D, E.) To the extent Plaintiff believes that Defendant is asking inappropriate questions, she may decline to answer, and Defendant will have the option to compel Plaintiff’s answer, to the extent they deem the response necessary and relevant.[1] Plaintiff suggests that questions regarding medical treatment of her family members is inappropriate; this Court agrees, and the defense does not appear to argue otherwise.

Plaintiff also seeks to prevent the examiners from asking questions relating to the incident. The Court finds Plaintiff’s requested limitation to be improper. Questions regarding the incident are directly relevant and necessary to lay the foundation for questions relating to Plaintiff’s neurological and mental injuries.

Plaintiff contends that she should be allowed to audio record the examinations, and the defense is in agreement that the interview portion may be recorded. In any case, Code of Civil Procedure section 2032.530(a) expressly provides that the “examiner and examinee shall have the right to record a mental examination by audio technology.”¿The Court will permit the audio recording of the mental examination.

Plaintiff also requests reasonable breaks during the examinations. There is no indication that Plaintiff’s requests for reasonable breaks will be declined, and the Court will not make an express order requiring breaks. The Court will expect the parties and their experts to comport with common courtesy, decency, and professionalism at all times.

Plaintiff requests that her neurologist/neuropsychologist be allowed to attend the examinations. The Court declines Plaintiff’s request. There is a special need for rapport between examiner and examinee during a mental examination, and thus, neither counsel, court reporters, or third parties may attend a mental examination absent a court order or stipulation.¿ (See¿Edwards v. Superior Court¿(1976) 16 Cal.3d 905, 910-912;¿see also¿Toyota Motor Sales, U.S.A., Inc. v. Superior Court¿(2010) 189 Cal.App.4th 1391, 1396-1397;¿Golfland¿Entertainment Centers, Inc. v. Superior Court¿(2003) 108 Cal.App.4th 739, 750-751.) Courts have allowed a third party to attend a mental examination when that person’s presence was necessary. (See Golfland Entertainment Centers, Inc. v. Superior Court¿(2003) 108 Cal.App.4th 739, 748 [where the examinee’s mother was allowed to attend because there was the potential that the examinee would give repetitive answers due to brain injury].) Here, Plaintiff has failed to show that having her neurologist/neuropsychologist present is necessary.

Plaintiff requests the disclosure of the exam materials, exam results, and disclosure of the raw data from the examinations to her attorneys. Defendant does not oppose the disclosure of the raw data directly to Plaintiff’s licensed psychologist, as long as there is a protective order limiting the use and further disclosure of the material to safeguard the integrity and validity of the tests. As discussed and agreed to by the Defense at the April 12 hearing,the Court orders the exam materials, exam results, and raw data to be exchanged directly between the Defense neuropsychologist and Plaintiff’s licensed psychologist and not shared with any party or their counsel.

Lastly, Plaintiff requests that she not be held responsible for any cancellation fees. The Court finds that if Plaintiff cancels an exam without good cause, she would be subject to paying the cancellation fee.

Plaintiff is ordered to appear for a neuropsychological exam with Dr. Kyle Boone at 24564 Hawthorne Blvd., Suite 208, Hillside Village, Building B, Torrance, CA 90505. Defendant has set forth the proposed scope of the examination, as well as the manner, conditions, and nature of the examination, in the Demand for Neuropsychological Examination filed with the motion, (Mot. Exh. E), and that the scope of the examination may not be expanded in connection with the compelled exam. The specific tests that Dr. Boone may perform are: Wechsler Adult Intelligence Scale – III or IV; California Verbal Learning Test – II; Dot Counting Test; MMSE; Brief Visualspatial Memory Test – Revised; Trailmaking; Finger Tapping; Finger Agnosia; B Test; Wide Range Achievement Test – IV; Word Memory Test; Rey Auditory Verbal Learning Test; Wechsler Memory Scale – III or IV; Portland Digit Memory Test; Rey-Osterrieth Complex Figure; Test of Memory Malingering (TOMM); Minnesota Multiphasic Personality Inventory – 3; Stroop Test; Warrington Recognition Memory Test; FAS; Rey 15-item; Morel Emotional Numbing Test; Rey Word Recognition Test; Wisconsin Card Sorting Test; Coin in Hand Test; and the Victoria Symptom Validity Test. (Id.)

Plaintiff is further ordered to appear for a neurological examination with Dr. Kenneth Nudleman at 801 N. Tustin Ave., Suite 304, Santa Ana, CA 92705. Defendant has set forth the proposed scope of the examination, as well as the manner, conditions, and nature of the examination, in the Demand for Neurological Medical Examination filed with the sur-reply, (Sur-reply Exh. B), and that the scope of the examination may not be expanded in connection with the compelled exam. The specific tests that Dr. Nudleman may perform are: a mental status examination; palpation of spine and various muscles; examination of muscle tone throughout the body; motor function; deep tendon (muscle stretch) reflex testing of the jaw; biceps; radial brachialis; triceps; distal finger flexors, quadriceps/knees; ankles and feet using different instruments; Plaintiff’s blink and gag reflexes may also be tested; strength; sensory testing; coordination, balance and gait; a tandem stand, heel to shin test, and Romberg test. (Id.)

Counsel must meet and confer to determine the date and time for the examinations; if Plaintiff does not meaningfully participate in the meet and confer process, Defendant may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff (extended per Code if by other than personal service).

The service of a deposition notice, pursuant to CCP § 2025.240, is effective to require any party deponent to attend, testify, and produce materials for inspection at a deposition. (CCP § 2025.280(a).) To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant CCP § 2020.010, et seq. (CCP §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP §§ 2020.010, et seq., and is primarily carried out by way of subpoena].)

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (CCP § 2025.480(i).)

In this case, Defendant asserts that Plaintiff disclosed in discovery that she treated with Dr. Kashani following the accident. Defendant asserts that he served a deposition subpoena on Dr. Kashani setting Dr. Kashani’s deposition for April 7, 2022. Dr. Kashani notified defense counsel he was unavailable on that date, so the deposition was rescheduled for May 6, 2022. Defendant asserts that Dr. Kashani failed to appear on May 6, 2022, and that Dr. Kashani’s assistant then confirmed Dr. Kashani would appear for deposition on July 14, 2022. Defendant asserts he issued a new deposition subpoena for that date, but Dr. Kashani failed to appear for that date as well. Defendant argues that there is no justification for Dr. Kashani’s failure to appear for deposition.

Plaintiff opposes the motion arguing that Dr. Kashani never refused to appear for deposition. Plaintiff asserts that as to the May 6, 2022 deposition date, defense counsel was notified on May 4, 2022, that Dr. Kashani had Covid. Further, Dr. Kashani’s assistant informed defense counsel that Dr. Kashani had not received his requested payment for the deposition of $1,000.00 per hour. As to the July 14, 2022 deposition date, Plaintiff asserts that three days before the deposition date Dr. Kashani’s assistant informed Defendant that payment needed to be sent prior to the deposition and that Dr. Kashani would not attend the deposition if he did not receive payment in advance. Finally, Plaintiff contends that the deposition seeks to invade her right to privacy.

In reply, Defendant contends that Dr. Kashani failed to appear for his deposition, and Defendant provides that Defendant overnighted a check for $1,000 that was received by Dr. Kashani’s office the morning of the deposition. Defendant contends there is thus good cause to compel Dr. Kashani to appear for deposition.

The evidence shows that Defendant served Dr. Kashani with multiple deposition subpoenas, but Dr. Kashani did not appear for deposition. However, Dr. Kashani’s assistant submits a declaration stating that Dr. Kashani did not appear for the May 6, 2022 deposition because Dr. Kashani had Covid, and that Dr. Kashani did not appear for the July 14, 2022 deposition because Dr. Kashani’s deposition fee was not received by Dr. Kashani. (Opp. Gamez Decl. ¶¶ 5-7.) While Defendant argues that the payment was received by Dr. Kashani the morning of the deposition, Defendant does not submit any evidence to corroborate or support this contention. Consequently, the primary dispute between Defendant and Dr. Kashani appears to concern the alleged non-payment of the Dr. Kashani’s deposition fee.

Because Defendant properly served deposition subpoenas on Dr. Kashani, and Dr. Kashani failed to appear, Defendant’s motion is granted. Counsel and Dr. Kashani must meet and confer to determine the date and time for the examination; if Dr. Kashani does not meaningfully participate in the meet and confer process, Defendant may unilaterally set the date and time for the examination with at least ten days’ notice to Dr. Kashani (extended per Code if by other than personal service). If Defendant has not already done so, Defendant must pay Dr. Kashani’s deposition fee at least two days prior to the deposition date.

Regarding Plaintiff’s contention that the deposition will violate her privacy rights, Plaintiff does not dispute putting her physical and emotional condition at issue. There is no showing at this time that Defendant seeks to invade Plaintiff’s privacy rights.

Lastly, Defendant seeks sanctions of $2,364.00 against Dr. Kashani. Given the dispute as to whether Dr. Kashani’s deposition fee was paid or not prior to the July 14, 2022 deposition, the Court does not find sanctions warranted against Dr. Kashani at this time.

Defendant’s motion for leave to compel Plaintiff’s neurological and mental/neuropsychological examinations is granted, with the limitations set forth above.

· 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.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] The Court notes that there are some areas of inquiry that are generally prohibited, such as communications between an attorney and a client, and cautions Defendant’s examiners to not seek private, privileged, confidential, or irrelevant information. The Court further notes that Plaintiff cannot claim a right to privacy, or that information is privileged confidential, and/or irrelevant if the information sought is related to the specific issues that Plaintiff brought before the Court. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 859.)