Judge: Michelle C. Kim, Case: 20STCV42561, Date: 2023-05-03 Tentative Ruling

Case Number: 20STCV42561    Hearing Date: May 3, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Sheila Keller (“Sheila”) and Riversun Keller (collectively, “Plaintiffs”) filed this action against Defendant Nancy Foster (“Defendant”) for damages arising from a motor vehicle accident. 

Defendant now moves for leave to conduct a neurological examination of Plaintiff Sheila, more than 75 miles from Ms. Keller’s residence, before Dr. Edwin C. Amos (“Dr. Amos”) on May 15, 2023, at 2:00 p.m., at 2021 Santa Monica Blvd. Suite 525E Santa Monica, California 90404.  Sheila opposes the motion, and Defendant filed a reply.

            Defendant provides that after meeting and conferring with Sheila, Sheila, who resides in Oregon, has agreed to appear for a neuropsychological exam with Dr. Manuel Saint Martin and for a neurosurgical exam with Dr. Srinath Samudrala, but Sheila will not agree to appear for a neurological exam with Dr. Amos.  Defendant asserts that Sheila is claiming multiple physical and mental injuries as a result of the accident, including post-traumatic stress disorder, shoulder, neck and back injuries, and a traumatic brain injury, and balance issues, among others.  Defendant argues that Sheila’s claimed injuries warrant a neurological exam, and Defendant avers there is good cause for ordering Sheila to appear in California because she has already agreed to appear for exams in Los Angeles on May 15 and 16, 2023. 

            In opposition, Sheila argues that Defendant fails to show good cause for a neurological exam by Dr. Amos in addition to the exam already being performed by Dr. Samudrala.  Sheila asserts that she has not sought treatment from both a neurologist and neurosurgeon, and that given the significant overlap in the expertise of a neurologist and neurosurgeon, it is unnecessary for Sheila to submit for an examination by both Dr. Samudrala and Dr. Amos.  Defendant contends that Dr. Samudrala is more than qualified to perform the exam of Sheila’s brain proposed to be performed by Dr. Amos. 

            In reply, Defendant argues that Sheila is not disputing that she alleges significant neurological injuries, including traumatic brain injury, and that Sheila does not dispute there is good cause for the exam taking place in California.  Further, Defendant asserts that Dr. Samudrala specializes in surgery, not traumatic brain injury, so Dr. Amos’s exam of Sheila will not be duplicative of Dr. Samudrala’s exam of Plaintiff.

2. Motion for Leave to Conduct Mental Examination

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).) 

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.  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.) 

Here, Defendant submits evidence showing that Sheila is claiming to have suffered several neurological injuries from the accident, including a traumatic brain injury, vision issues, ringing in ears, loss of taste, sleep issues, cognitive deficiencies, balance issues, dizziness, and nausea.  (Mot. Exhs. A-B.)  Plaintiff does not dispute alleging these injuries or putting her neurological condition at issue.  Rather, Sheila contends that it is unnecessary for Dr. Amos to examine her because Dr. Samudrala is qualified to perform a neurological exam.  Sheila, however, does not submit any evidence regarding Dr. Samudrala’s qualifications in this regard.  Further, Defendant attests that Dr. Samudrala will evaluate Plaintiff’s neck, back and shoulder injuries, whereas Dr. Amos will focus on Sheila’s brain function.  Dr. Amos states that the proposed exam is necessary to understand Sheila’s neurological complaints.  (Mot. Dr. Amos Decl. ¶ 12.)  Accordingly, there is good cause for the exam sought to be done by Dr. Amos.

CCP § 2032.320(d) requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.”  Defendant indicates the scope of the examination in the moving papers.  The Court notes Defendant also listed the potential tests in the moving papers, which is sufficient to permit Sheila to prepare for the examination.  (Mot. at p. 8:3-27.)  Moreover, Sheila does not object to any of the listed tests.  The Court therefore finds Defendant has met Defendant’s obligations in this regard. 

Lastly, as to ordering the exam to take place in Santa Monica, CCP § 3032.320(e) provides:

If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:

(1) The court determines that there is good cause for the travel involved.

(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.

Defendant provides that Sheila resides in Oregon, but she will already be in Los Angeles on May 15 and 16, 2023, for exams with other medical providers that Sheila has agreed to.  Sheila, in her opposition, does not dispute there is good cause for having the exam with Dr. Amos take place in Santa Monica.  Nor does Sheila otherwise provide any reason she should not be ordered to submit to an exam in Santa Monica on May 15, 2023, when she will already be in Los Angeles. 

            Based on the foregoing, Defendant’s motion for leave to conduct a neurological exam of Sheila is granted. 

            Plaintiff Sheila Keller is ordered to appear for a neurological exam with Dr. Edwin C. Amos (“Dr. Amos”) on May 15, 2023, at 2:00 p.m., at 2021 Santa Monica Blvd. Suite 525E Santa Monica, California 90404.  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 Examination filed with the motion, (Sur-reply Exh. B), and in the moving papers, (Mot. at pp. 7-8:23-27); the scope of the examination may not be expanded in connection with the compelled exam.  Similarly, the specific tests that may be performed are those listed in Defendant’s motion.  (Mot. at p. 8:3-27.)  Defendant must advance the reasonable expenses and costs for Sheila to travel to the examination. 

Defendant is 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 3^rd day of May 2023