Judge Stephen P. Pfahler, Case 19STCV31981 2022-08-24 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 19STCV31981, Date: 2022-08-24 Tentative Ruling

Case Number: 19STCV31981 Hearing Date: August 24, 2022 Dept: F49

Dept. F-49
Date: 8-24-23
Case # 19STCV31981
Trial Date: 2-27-23 c/f 6-13-22 c/f 10-4-21

IME

MOVING PARTY: Defendants, The Board of Trustees of the California State University, et al.

RESPONDING PARTY: Plaintiffs, Francisco and Elizabeth Salas

RELIEF REQUESTED:

Motion for Independent Medical Examination

SUMMARY OF ACTION:

Plaintiff Francisco Salas was an employee of Defendant Bomel Construction Company, Inc. On May 22, 2019, while working on a parking lot construction project on the campus of California State University Northridge/The Board of Trustees of the California State University, Defendant Joe Fileto allegedly repeatedly struck Francisco Salas with a shovel to his head. Francisco Salas alleges Bomel Construction refused to assist him in obtaining medical care following the attack.

On September 10, 2020, Plaintiffs filed their complaint for assault, battery, negligence, intentional infliction of emotional distress, wrongful termination, retaliation, and loss of consortium. On September 26, 2019, Plaintiffs filed their first and second amended complaint.1

The action was transferred from the Personal Injury court to Department 49 on January 3, 2020.

Defendant California State University Northridge/The Board of Trustees of the California State University is the only named a defendant in the negligence cause of action, and as a co-defendant in the loss of consortium cause of action.

On August 18, 2020, the court sustained the demurrers of The Board of Trustees of the California State University with 20 days leave to amend. Notwithstanding the court order barring the addition of any new causes of action, Plaintiff added two new, separate causes of action to the third amended complaint for assault and battery, thereby separating Joe Fileto for the actual conduct and naming Bomel Construction Company, Inc. for ratification liability. Plaintiff also dropped the separate negligence claim against Bomel Construction Company, Inc.

On January 6, 2021, the court sustained the demurrer of Bomel Construction Company to the retaliation cause of action without leave to amend. Plaintiff agreed to dismiss the loss of consortium cause of action. On January 7, 2021, the court overruled the demurrer The Board of Trustees of the California State University. Defendants answered the third amended complaint on January 15, 2021.

RECOMMENDED RULING: Granted.

Defendants The Board of Trustees of the California State University and Bomel Construction Company, Inc. move to compel an independent medical examination related to the mental and emotional distress claims within the action. Defendants seek a neuropsychological examination.

Plaintiff in opposition agrees to the examination but requests the examination “take place over a course of several days,” in order to accommodate Plaintiff’ post traumatic stress disorder induced anxiety in leaving his home.

The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

Absent a stipulation, a court order is required for a mental examination. (Code Civ. Proc., § 2032.320, subd. (a).) The examination will be limited to whatever condition is “in controversy” in the action. The standard for good cause requires the moving party to produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) The examination may not include any diagnostic test or procedure that is painful, protracted, or intrusive and the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).) “This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.250, subd. (a).) Moving party demonstrates a sufficient meet and confer effort. [Declaration of Alexander Rynerson.]

Past injuries outside the subject controversy are not subject to examination. (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887; Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341 (“Reuter.”) The court finds the current emotional distress injury claims are present and relevant to the current damages claim, even if the origin of certain conditions potentially predates the incident. The proposed examination into Plaintiff’s psychological condition is therefore proper and was indisputably put it into issue by Plaintiff.

Defendant moves for a single examination by Ted Evans, Ph.D., a licensed psychologist. The motion is supported by the declaration of counsel, but not Evans. While Evans is represented as working within the University of California Los Angeles medical system, it’s not clear whether the neuro-psychologial tests will be conducted under the direction of a psychiatrist. [Rynerson Decl., Ex. D.] Because a psychologist is not a licensed physician under the purview of authority compelling an IME, the court cannot compel a solo psychological examination. (Reuter v. Superior Court, supra, 93 Cal.App.3d at pp. 339-340; see Code Civ. Proc., § 2032.020, subd. (b).).

Nevertheless, Plaintiff raises no objection on this ground. The court also finds the employment with the Ronald Reagan Medical Center at UCLA, renders the care under the purview of licensed psychiatrists.

Plaintiff submits no legal support for the demand that the examination constitutes an improperly protracted request. While section 2032.220, subdivision (a) bars a protracted examination, the court declines to make a structured order absent more specificity and support from Plaintiff and in consultation with the examining medical provider. A representative may observe the examination and seek to interject for purposes of seeking a protective order, but no such situation is before to the court at this time. (See Code Civ. Proc., § 2032.020, subd. (e).) The court otherwise refrains from imposing specific conditions at this time.

The motion is therefore granted. The examination is ordered to proceed.

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2032.240, subd. (c), 2032.250, subd. (b).) Defendant makes no request for sanctions.

Moving defendant to provide notice.