Judge Ronald F. Frank, Case Number: 24TRCV00507, Date: 2025-02-20 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV00507, Date: 2025-02-20 Tentative Ruling

Case Number: 24TRCV00507 Hearing Date: February 20, 2025 Dept: 8

Tentative Ruling

HEARING DATE: February 20, 2025

CASE NUMBER: 24TRCV00507

CASE NAME: Angela Connaughton v. Glen Sugahara, et al.

MOVING PARTY: Defendants, Glen Sugahara and Leilani Sugahara

RESPONDING PARTY: Plaintiffs, Angela Connaughton

TRIAL DATE: Not Set.

MOTION:

(1) Motion for an Order Compelling an Independent Mental Examination of Plaintiff

Tentative Rulings:

(1) ARGUE. If Plaintiff’s damages evidence will include the mental and emotional distress over and above what would normally be associated with the physical injuries claimed, then there may be a good faith basis for the defense to evaluate Plaintiff’s condition by a neuropsychologist. There appear to be claims of cognitive impairment including memory deficits, trouble focusing, and difficult with word recall and speech. On the other hand, the defense already had a neurological IME just last month. Did the earlier IME address the cognitive symptoms and grounds for clearance for the nerve stimulator device? If not, why not?

I. BACKGROUND

A. Factual

On February 13, 2024, Plaintiff, Angela Connaughton (“Plaintiff”) filed a complaint against Defendants, Glen Sugahara and Leilani Sugahara (collectively, “Defendants”). The complaint alleges causes of action for: (1) General Negligence; and (2) Premises Liability. The complaint is based on the allegations that Plaintiff fell downstairs on July 12, 2022 while Plaintiff was in her rental property and suffered injury to her head, neck, shoulders, and ribs, as well as headaches as a result of the fall. Plaintiff’s complaint asserts that Defendants’ stairs on the premises lacked adequate safety measures and that the Defendants improperly constructed, installed, and/or maintained the stairs and/or stair handrail.

The moving papers attach a medical report to the Young Declaration indicating that Plaintiff’s symptoms include cognitive impairment such as memory loss, difficulties with word recall and speech, trouble focusing, and related issues. These symptoms appear to be more than the physical pain and discomfort usually associated with a blow to the head. Accordingly, the defense seeks a neuropsychological IME to assess the potential for Plaintiff to claim traumatic brain injury and an organic cause of these atypical symptoms. While the Opposition argues that Plaintiff’s mental condition is not at issue (Opp. At 4:1-2) and that Plaintiff alleges pain and

suffering “but not beyond that normally resulting form physical harm” (id. at 4:17-18), there is no stipulation of the parties that limits the evidence at trial to normal or typical non-economic damages of pain and suffering.

Accordingly, Defendants move for leave to take the mental examination of Plaintiff in the specialty of neuropsychology.

B. Procedural

On November 22, 2024, Defendants filed this Motion to Compel Independent Mental Examination of Plaintiff. On February 10, 2025, Plaintiff filed an opposition. On February 11, 2025, Defendants filed a reply brief.

II. ANALYSIS

A. Legal Standard

A court order is required to obtain a party’s mental examination. (Code Civ. Proc. § 2032.310(a).) Such an order may be made only after notice and hearing, and for "good cause shown." (Code Civ. Proc., §§ 2032.310(c), 2032.320(a).)

The motion must state the time, place, identity and specialty of the examiner, and the "manner, conditions, scope and nature of the examination." (Code Civ. Proc., § 2032.310(b).) “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.” (Code Civ. Proc., § 2032.320(d).) “The court is to describe in detail who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. The way to describe these ‘diagnostic tests and procedures’—fully and in detail—is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)The moving party must support their motion with a meet and confer declaration (Code Civ. Proc., § 2032.310(b).) A meet and confer declaration must state facts "showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." (Code Civ. Proc., § 2016.040.)

The examination will be limited to whatever condition is "in controversy" in the action. (Code Civ. Proc., § 2032.020(a).) This means that the specific injury or subject of the litigation must be directly invoked by the examination. (See Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.) By alleging a causal link between the emotional distress and the defendant's conduct, a plaintiff "implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress." (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) However, a mental examination is only appropriate where the plaintiff alleges continuing emotional distress. (Doyle v. Sup. Ct. (Caldwell)(1996) 50 Cal.App.4th 1878, 1886-1887.) "While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing

solely on the basis of speculation that something of interest may surface." (Vinson, supra, 43 Cal.3d at 840.)

B. Discussion

The crux of the issue presented by this motion is whether Plaintiff’s previous assessment for a traumatic brain injury (“TBI”) and the cognitive impairment symptoms reported in the medical records attached to the moving papers is a claim for physical or mental injury. In Plaintiff’s opposition brief, she argues that her mental condition is not in controversy but that instead, she is only alleging pain and suffering but not beyond that normally resulting from physical harm and that she has not alleged severe emotional distress. Moreover, Plaintiff states that after her assessment for TBI, Dr. Maasumi did not diagnose her with a TBI or refer her to a neuropsychologist, but instead, diagnosed her with: (1) headache, unspecified and (2) post traumatic headache, unspecified. After a follow up with Dr. Maasumi, Plaintiff emphasizes that Dr. Maasumi’s diagnosis remained unchanged.

Defendants’ moving papers explain that they seek leave to conduct a neuropsychological examination with neuropsychologist John T. Dunn, Ph.D., because Plaintiff would require a psychological clearance to obtain a peripheral nerve stimulator. This argument references the referral by Plaintiff’s pain management physician, Dr. Dworkin, that Plaintiff undergo a $194,000 operation to install a neuro-nerve stimulator that first requires Plaintiff to receive that pre-psychological clearance. Based on this, Defendants assert that due to the potential claim of a TBI and various cognitive deficits, and recommendation for future psychological care to diagnose, evaluate and treat Plaintiff after the accident, this places mental condition into controversy.

Plaintiff’s opposition asserts that Defendants’ argument is a red herring, noting that she has not treated with a neuropsychologist or neuropsychiatrist in relation to her injury claims, and does not have any future appointments with a neuropsychologist or neuropsychiatrist. The Court also wonders -- if Defendants’ basis for requesting leave to have Plaintiff sit for an IME is that she must receive pre-psychological clearance to install the neuro-nerve stimulator -- why Defendants’ neuropsychologist would not also be assessing Plaintiff for clearance. Instead, the IME notice states: “The examination will be conducted for the purpose of determining, evaluating, and addressing the plaintiff’s mental condition and claims of mental/emotional/cognitive injuries in controversy in this action. Claims of continuing, ongoing or permanent probes, if any, will be within the scope of the examination, including claims for future care.”

On balance, the Court requires oral argument on the true reasons or justification for the neuropsych exam requested. Is it to assess clearance for the nerve stimulator device and procedure? Is it to assess a possible organic basis for the atypical symptoms plaintiff reported? Is it to rule out the potential for Plaintiff to assert TBI at trial?

From Plaintiff, the Court requires oral argument as to whether Plaintiff will agree to stipulate that no claim is being made for the premises liability accident causing memory loss or unresolved headaches, trouble focusing, speech or voice recognition symptoms, and the like.

For both sides, the Court seek argument as to the scope of the January 2025 neurological IME and whether the cognitive symptoms and TBI issue were adequately covered by that earlier examination.