Judge Michelle C. Kim, Case 20STCV49008 2023-05-16 Tentative Ruling

CARLOS ARIAS,

Plaintiff(s),

vs.

CITY OF LOS ANGELES, ET AL.,

Defendant(s).

)

)
)

Case No.: 20STCV49008

[TENTATIVE] ORDER CONTINUING MOTION TO COMPEL PLAINTIFF’S FURTHER INDEPENDENT MEDICAL EXAMINATION

Dept. 31

1:30 p.m.

March 16, 2023

Background

Plaintiff Carlos Arias (“Plaintiff”) filed this action against Defendants City of Los Angeles (the “City”) and County of Los Angeles, asserting one cause of action for dangerous condition of public property. Plaintiff alleges that he is a Montana resident. On June 2, 2020, Plaintiff was riding his scooter at night in Los Angeles, California, when the scooter caught on an elevated portion of a sidewalk, causing him to fall violently and sustain severe injuries. The sidewalk constituted a dangerous condition. Defendants owned, controlled, maintained, or were otherwise responsible for that sidewalk.

The City, at this time, moves for an order compelling Plaintiff to undergo a medical exam (“IME”) by Dr. Anne A. Turk Nolty, Ph.D. (“Dr. Nolty”), the defendant’s designated expert in neuropsychology, on or before November 19, 2022. The City argues that Plaintiff recently put his “neuropsychological condition” at issue with the recent designation of his expert Dr. Arnold Purisch (“Dr. Purisch”). Dr. Purisch produced a 63-page report containing “new and substantial information” about the Plaintiff, including an extensive cognitive and mental injury, with symptoms and conditions not previously disclosed. Therefore, the City requests an order compelling Plaintiff to make himself available for examination by Dr. Nolty. The City further asks for an Order requiring Plaintiff to pay for his travel and expenses for the IME.

Plaintiff opposes the motion, arguing the following, among other things. First, the motion is untimely because discovery is closed. Second, Plaintiff has already been examined by the City’s neurologist Steven Sykes, M.D., and its otolaryngologist (ear, nose, and throat doctor), Eric J. Yavrouian, M.D., on November 18, 2022. Third, the defense had notice of Plaintiff’s traumatic brain injury (“TBI”) condition since at least August 16, 2021, through Plaintiff’s discovery responses, but waited until now, the eve of trial, to file this untimely motion. Fourth, the motion is defective because the proposed IME’s date of November 19, 2022, has already passed, the motion is not accompanied by a declaration by Dr. Nolty attesting to the tests that will be performed, and there are no protections in place for maintaining the attorney-client privilege. Fifth, the City does not show good cause requiring Plaintiff to travel from his home in Montana to California to attend the IME at his expense.

In reply, the City argues the following, among other things. First, discovery should be reopened to conduct Plaintiff’s neuropsychological examination so that the City is not placed at an unfair disadvantage at trial. The City has filed the Motion to Extend Discovery Cutoff, but the hearing is set for May 25, 2023. Second, the City has shown good cause to conduct Plaintiff’s neuropsychological examination. Third, the proposed IME is reasonable and within the scope of Plaintiff’s alleged injuries since Plaintiff designated his neuropsychological expert. Fourth, the City offered to schedule the IME during Plaintiff’s November 18, 2022, trip to California, but Plaintiff refused.

Motion to Compel

Where any party seeks to obtain discovery by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).)

A court must first determine whether a party’s mental condition is in controversy. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-840 (“Vinson”).)

If a party has placed their mental condition in controversy, the next step is determining whether good cause has been shown for the IME. (Vinson, supra, 43 Cal.3d at p. 840 [A “court may grant the motion [to compel an IME] only for good cause shown”]; Code Civ. Proc., § 2032.320, subd. (a).)

Good cause is shown where the IME is relevant to the case, and the moving party has provided specific facts justifying the IME. For example, in Vinson, the Supreme Court found there was good cause because the plaintiff alleged that she “continue[d] to suffer diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation, and severe emotional distress.” (Vinson, supra, 43 Cal.3d at p. 837.) Moreover, “the truth of [those] claims [were] relevant to plaintiff’s cause of action and justifying facts [had] been shown with specificity ….” (Ibid.)

A motion to compel mental examination “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310, subd. (b).)

The City has satisfied the meet and confer requirement. (Declaration of Justin H. Sanders (“Sanders Decl.”), ¶¶ 13-15.)

b. Separate Statement

A motion for “medical examination over objection” must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a).)

The City has satisfied that requirement by filing a separate statement, “provid[ing] all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c).)

c. Discovery Cut Off Date

On December 6, 2022, the Court ruled in its order granting the City’s motion to continue trial: “Discovery is reopened as to discovery concerning Swan’s deposition only. This discovery cutoff date for Swan’s deposition and all cutoff dates that have not yet passed are to be based on the new trial date.” (Minute Order dated December 6, 2022.) Therefore, discovery is closed.

However, the City has a pending motion to reopen discovery set for May 25, 2023.

Therefore, the Court will continue the hearing for this motion to be heard with the City’s Motion to Extend Discovery Cutoff.

Accordingly, the Motion to Compel Plaintiff’s Further Independent Medical Examination is CONTINUED to May 25, 2023, at 1:30 p.m., Dept. 31, Spring Street Courthouse.

Moving 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 16th day of May, 2023