I. BACKGROUND 

Plaintiff Reina Resnik (“Plaintiff”) filed this action against Defendants City of Los Angeles (“the City”), County of Los Angeles, State of California, Cherry Street Garage, Los Angeles Convention Center, Staples Center for a slip and fall incident.  

At this time, the City moves for an order compelling Plaintiff to appear for a mental examination with neuropsychologist Earl C. Thorndyke, Ph.D., (“Dr. Thorndyke”) at 11835 W. Olympic Blvd., Ste. 1270E, Los Angeles, CA 90064. 

Plaintiff opposes the motion, and the City filed a reply. 

The City argues Plaintiff testified at deposition that she attributes PTSD, anxiety, an depression to the incident, and that she had been diagnosed as having PTSD with her provider, Dr. Mac. The City argues Plaintiff asserts psychological harm greater than general emotional distress claims.  

Plaintiff contends that she will not claim any emotional or psychological damages above the routine garden variety, and that she will not claim any neuropsychological treatment received from Dr. Mac either before or after the incident. 

The City argues that Plaintiff rejected a stipulation that she would not seek to introduce these claims and damages at trial, thus necessitating the need for this motion. The City asserts it cannot “take their word for it” that Plaintiff and her counsel will not bring claims beyond the typical emotional disturbance from the incident, when Plaintiff will not formally stipulate to the same.  

II. MOTION TO COMPEL DEFENSE 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, the Court finds good cause for a mental examination when Plaintiff claims great mental pain and suffering, such as testifying she was diagnosed with PTSD attributable to the incident, and has therefore placed her mental condition in controversy.  

However, CCP § 2032.320 provides, in relevant part, that if a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person absent a showing of exceptional circumstances.  

CCP § 2032.320(c) states that a stipulation by a party shall include both of the following: 

“(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed. 

(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.” 

In light of Plaintiff’s representations that she will limit her claims for emotional distress to a “garden variety” ordinarily associated with physical injuries arising from the incident, the Court will briefly continue the motion so that the parties may draft a formal stipulation giving effect to the representations Plaintiff has made to this Court. Once a stipulation is signed by the parties, this motion will be rendered moot.  

III. CONCLUSION 

Within ten (10) days of this Order, the parties are ordered to meet and confer to draft and sign a stipulation giving effect Plaintiff’s representations that she will limit her emotional and mental claims to those usually associated with the physical injuries claimed, and that she will not present expert testimony on these issues at trial. (CCP § 2032.320(c).)  

Trial is currently set for May 23, 2024. The Court will briefly continue this motion to _________. The City is ordered to notify the Court at least five (5) court days prior to the rescheduled hearing date as to whether the stipulation has been effectuated, and whether this motion will be taken off-calendar.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: