Judge: Michelle C. Kim, Case: 21STCV21519, Date: 2023-03-16 Tentative Ruling

Case Number: 21STCV21519    Hearing Date: March 16, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Mehrangez Danishwar (“Plaintiff”) filed this action against Defendant Randall Muenzberg (“Defendant”) for damages arising from a motor vehicle accident. 

At this time, Defendant moves for an order compelling Plaintiff to submit to a mental examination with Dr. Philip K. Stenquist, Ph.D. ABCN, Neuropsychologist.[1]  The motion is unopposed. 

2. Motion to Compel Defense Mental Examination of the Plaintiff

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 asserts that Plaintiff previously appeared for a physical examination, but Defendant contends that a mental exam is needed to evaluate Plaintiff’s claims.  Defendant provides that Plaintiff alleges she suffered post-concussive and post-traumatic stress disorder symptoms, including headaches, dizziness, ringing in ears, tinnitus, hearing loss, anxiety, and depression.  Defendant argues 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.) 

In this case, Defendant’s motion states:

Dr. Philip K. Stenquist’s examination will consist of intellectual functioning, language processing skills, perceptual skills, higher motor functions, attention and concentration skills, judgment, reasoning skills, mental flexibility, memory, constructional skills, abstract thinking and conceptualization skills, problem solving skills, behavioral regulation, personality alterations, and emotional functioning. The examination shall consist of basically the same type of tests, questions and procedures as conducted by Plaintiff's doctors. The examination shall include whatever history and tests the doctor deems relevant, and which are standard for the specialty and any other normal activities associated with a standard medical examination for a person with the Plaintiff’s complaints.

(Mot. at pp. 4-5:27-7.)  Thus, while Defendant’s motion speaks to the functions and skills Dr. Stenquist seeks to assess, Defendant’s motion does not state what actual diagnostic tests Dr. Stenquist expects to use.  (Carpenter, 141 Cal.App.4th at 259; Ibid.)  It describes the tests generically as “basically the same type of (unidentified) tests … conducted by Plaintiff’s doctors” and “whatever history and tests the doctor deems relevant.”  This is insufficient.  Defendant 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, Defendant’s motion does not comply with CCP § 2032.320.

While Defendant 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.  (Carpenter, supra, 141 Cal.App.4th at 260-262.) 

Based on the foregoing, Defendant’s motion to compel Plaintiff’s mental exam is denied without prejudice.  The parties are encouraged to meet and confer about executing a stipulation to resolve this matter promptly.

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 16^th day of March 2023