Judge: Serena R. Murillo, Case: 19STCV03327, Date: 2023-03-21 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

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 21, 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, 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 Thursday, April 13, 2023, at 9:00 a.m. within Dr. Henry’s medical offices located at 11601 Wilshire Boulevard, 5th Floor, Los Angeles, California 90025.  (Spencer Decl., ¶ 4.)  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.  (Carasso Decl., 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 further observes Plaintiff has undergone neurological examination, herself, at the medical offices of Kevin Aminian, M.D., and, has designated and plans to call expert witness H. Ronald Fisk, M.D., a Board-Certified Neurologist, 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. 

Lastly, Plaintiff’s counsel argues that in the event the Court is inclined to permit the mental examination of Plaintiff, the Court should allow the presence of Plaintiff’s counsel during the mental examination. This is not permitted by the Code of Civil Procedure or governing case law, which recognizes that a psychiatric examination requires “rapport between the interviewer and the subject” and that the presence of counsel “may largely negate the value of the examination” by “hinder[ing] the establishment” of that rapport.  (Code Civ. Proc., § 2032.510; Golfland Entertainment 9 Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739; Edwards v. Superior Court (2003) 16 Cal.3d 905, 910.) 

Plaintiff argues that the doctor is not there to help or treat but rather invade and cynically assess. Further, that this is the antithesis of a doctor/patient relationship and all the more reason for counsel to be present. Plaintiff further argues the only thing excluding counsel would accomplish would be to give Defendant the opportunity to take advantage an unsophisticated patient who would not know how to guard or protect herself from unscrupulous behavior. The Court, however, expects that Defendant and its expert shall be professional in performing the examination, and there is no reason cited for unscrupulous behavior.

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. 

 

Conclusion

 

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

 

Moving party is ordered to give notice.