Judge: Serena R. Murillo, Case: 19STCV03327, Date: 2023-03-08 Tentative Ruling

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ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV03327     Hearing Date: March 8, 2023    Dept: 29

TENTATIVE

Defendant Yolanda Yvette Coleman’s Motion For Order Permitting Mental Examination of Plaintiff is GRANTED.

Legal Standard

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

Discussion

Defendant  Yolanda Yvette Coleman (“Defendant”) moves for an Order permitting the commission of a mental examination of Plaintiff Camecia Lee (“Plaintiff”), pursuant to Code of Civil Procedure section 2032.310.  (Code Civ. Proc., § 2023.310.)

Following review of the parties’ moving, opposing, and reply papers, the Court concludes Defendant is entitled to an Order permitting Plaintiff’s neurological examination, pursuant to Code of Civil Procedure section 2032.310.  (Code Civ. Proc., § 2023.310.) 

First and foremost, the Court concludes Defendant has complied with the specificity requirements enumerated within Code of Civil Procedure section 2032.310, subdivision (b).  (Code Civ. Proc., § 2032.310, subd. (b) [a motion obtaining leave to perform a mental exam “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 . . . who will perform the examination.”].)  Defendant properly identifies the mental examination to be conducted will be a neurological examination of Plaintiff for the purposes of evaluating the functional impact of brain injury allegedly suffered by Plaintiff.  (Carasso Decl., Ex. 8 [explanation of the testing to be conducted and the specific tests which will be administered to Plaintiff].)  Defendant, additionally, identifies the neurological testing will be conducted by Board-Certified clinical neuropsychologist, George Henry, M.D. (“Dr. Henry”) on Wednesday, March 22, 2023 at 9:00 a.m. within Dr. Henry’s medical offices located at 11601 Wilshire Boulevard, 5^th Floor, Los Angeles, California 90025.  (Id., ¶ 11.)  Defendant submits a list of thirty-eight (38) neurological tests which may be conducted by Dr. Henry, identifying eight (8) of the thirty-eight (38) named tests are considered “[t]he Core Battery” tests usually administered to most examinees.  (Id., Ex. 8.)  Defendant explains, “[f]lexibility in the testing is necessary because the results of certain tests performed may necessitate the administration of additional tests which cannot be anticipated prior to the obtaining of a history via a clinical interview, and prior to the administration of certain basic neuropsychological tests.”  (Ibid.)  The Court concludes Defendant has complied with the specificity requirements enumerated within Code of Civil Procedure section 2032.310, subdivision (b), identifying the “time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty” of the examiner.  (Code Civ. Proc., § 2032.310, subd. (b); Carpenter, supra, 141 Cal.App.4th at p. 260 [“The way to describe these ‘diagnostic tests and procedures’—fully¿and¿in detail—is to list them by name.”].)

Second, the Court concludes “good cause” warrants the commission of a neurological examination of Plaintiff.  The Court observes Plaintiff has confirmed she maintains she suffered “a concussion/traumatic brain injury” as a result of Defendant’s alleged negligent operation of a motor vehicle, and alleges she has “since continued to suffer from symptoms consistent with a postconcussional state, including memory loss, dizziness, and a near-constant headache.”  (Opp., at p. 3:6-11.) The Court, furthermore, observes Plaintiff has undergone neurological examination, herself, at the medical offices of Kevin Aminian, M.D., and, furthermore, has designated and plans to call expert witness H. Ronald Fisk, M.D., a Board-Certified Neurologist, (“Dr. Fisk”) during trial in this action, in order to testify on the subject of Plaintiff’s alleged traumatic brain injury.  (Carasso Decl., Ex. 1 at pp. 9:18-22, 10:24-11:4, Ex. 2 at p. 4, Ex. 3 at pp. 2, 7.)  Considering Plaintiff has placed her neurological health directly at issue in this litigation, such establishes “good cause” to permit Defendant’s commission of a neurological examination of Plaintiff for the purposes of evaluating the extent of Plaintiff’s alleged traumatic brain injury. 

Based on the foregoing, the Court concludes Defendant is entitled to an Order permitting Plaintiff’s neurological examination, pursuant to Code of Civil Procedure section 2032.310.  (Code Civ. Proc., § 2023.310.)

Conclusion

Defendant Yolanda Yvette Coleman’s Motion For Order Permitting Mental Examination of Plaintiff is GRANTED.

Moving party is ordered to give notice.