Judge: Peter A. Hernandez, Case: 19STCV07033, Date: 2022-10-19 Tentative Ruling
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Case Number: 19STCV07033 Hearing Date: October 19, 2022 Dept: O
Background
Plaintiff Alfred J. Johnson (“Plaintiff”) alleges that, during a go-cart race on or about March 4, 2017, the electronic remote-control system in Plaintiff’s go-cart did not function as intended, such that Plaintiff’s go-cart failed to stop and collided with an employee. Plaintiff sustained serious injuries from the collision.
On April 15, 2020, Apex Parks Group, LLC dba SpeedZone Los Angeles filed a “Notice of Automatic Stay,” advising therein of its Chapter 11 bankruptcy filing. On November 12, 2020, a “Notice of Stipulation Re: Relief from the Automatic Stay; and Order Thereon” was filed.
On September 21, 2021, this action was transferred from Department 32 of the Personal Injury Court to this department.
1.
Negligence
2.
Strict
Products Liability
The Final Status
Conference is set for February 7, 2023. Trial is set for February 21, 2023.
Legal Standard
A party must obtain leave of court if the party desires to obtain discovery by a mental examination. (Code Civ. Proc., § 2032.310, subd. (a).) Section 2032.310(b) provides that the motion “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” A meet and confer declaration must also accompany the motion. (Code Civ. Proc., § 2032.310, subd. (b).) For a motion compelling mental examination to be granted, there must be a showing of “good cause.” (Code Civ. Proc., § 2032.320, subd. (a).)
An order granting a mental examination must 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, subd. (d).)
Discussion
Apex Parks Group, LLC dba SpeedZone Los Angeles (“Defendant”) moves the court compelling Plaintiff to undergo separate neuropsychological (i.e., by Dr. Kyle Boone, Ph.D. [“Boone”] on November 7, 2022), neurological (i.e., by Dr. Edwin Amos, M.D. [“Amos”] on November 28, 2022) and orthopedic (by Dr. Andrew Weinstein, M.D. [“Weinstein”] on October 7, 2022) independent medical examinations.
First, the court notes that Defendant has not filed a proof of service from First Legal, confirming that personal service of the instant motion was made on September 27, 2022 [see footnote]. Defendant is instructed to file same at or before the time of the hearing.
Next, the court notes that on September 12, 2022, Plaintiff’s counsel Julie Lim (“Lim”) confirmed the October 7, 2022 and November 28, 2022 dates for Plaintiff’s examinations with Weinstein and Amos, respectively. (Woods Decl., ¶ 11, Exh. 7.) Defendant’s motion, then, is summarily denied as moot in this regard. The following analysis, then, pertains only to the proposed independent medical examination by Boone.
Defendant’s current counsel substituted into the case on or about March 15, 2022. (Woods Decl., ¶ 5, Exh. 1.) On January 18, 2022, Defendant’s prior counsel served a “Notice of Independent Neuropsychological Examination of Plaintiff, Alfred J. Johnson,” scheduling same with Boone for April 7, 2022. (Id., ¶ 7, Exh. 3.) Plaintiff did not serve any objections thereto. (Id., ¶ 7.) Plaintiff did not present for the April 7, 2022 examination. (Id., ¶ 7, Exh. 3.) The examination with Boone was re-scheduled for August 29, 2022. (Id., ¶ 11.) Plaintiff did not appear on August 29, 2022. (Id.) Counsel thereafter met and conferred, during which time Lim requested a stipulation to limit the scope of the Boone IME. (Id., ¶ 13, Exh. 7.) Defendant’s counsel determined these concerns were already addressed in the “Amended Notice of Independent Neuropsychological Examination of Plaintiff, Alfred J. Johnson” served on August 25, 2022. (Id., ¶ 13, Exh. 6.)
Defendant represents that the purpose of the neuropsychological exam is to determine whether Plaintiff has suffered ongoing neurocognitive, emotional and/or mental injuries as a result of Defendant’s conduct, as alleged in the complaint, and whether other conditions may be causing Plaintiff’s alleged symptoms.
The court finds that Defendant has not shown good cause for the proposed neuropsychological examination. Defendant represents that Plaintiff has alleged “severe mental and emotional injuries, including emotional distress because of Defendants’ alleged negligence.” (Motion, 4:3-4.) Defendant, however, has failed to provide the court with any specific language in Plaintiff’s operative SAC which references mental and/or emotional injuries. Defendant has likewise failed to provide the court with any discovery responses wherein Plaintiff identifies having sustained such injuries as a result of the incident. Further, while Boone references that it is her understanding that Plaintiff “was diagnosed with a Traumatic Brain Injury and that [he] alleges severe mental pain and suffering, anxiety, and depression in conjunction with the alleged Incident” based on her review of “available medical records, discovery responses,” no such supporting documents have been provided.
The motion, then, is denied without prejudice as it pertains to an independent medical examination by Boone.