Judge: Steven A. Ellis, Case: 21STCV13446, Date: 2025-01-03 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: 21STCV13446    Hearing Date: January 3, 2025    Dept: 29

Fox v. City of Beverly Hills
21STCV13446
Motion for Leave for Mental (Neuropsychological) Examination of Plaintiff filed by Defendant City of Beverly Hills

Tentative

The motion is granted, subject to the conditions set forth in this order.

Background

Plaintiff Martha Fox (“Plaintiff”) alleges that on March 8, 2020, she sustained severe and permanent injuries after falling on uneven cement in an alleyway at or near 404 North Palm Drive in Beverly Hills. She filed the complaint in this action on April 8, 2021, asserting causes of action for premises liability and negligence against City of Beverly Hills (“City”), Excel Paving Company, and Does 1 through 50.

On May 13, 2021, City filed its answer to the complaint. On the same day, City filed a cross-complaint for indemnity against Palp, Inc. dba Excel Paving Company (“Excel”) and Roes 1 through 50.

On April 18, 2022, Plaintiff amended her complaint to name Excel as Doe 1.

Excel filed its answer to the complaint and cross-complaint on September 12, 2022.

On December 4, 2024, City filed this motion for leave to conduct a mental examination of Plaintiff.

No opposition has been filed.

Legal Standard

“Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition … of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2032.020, subd. (a).)

In a personal injury action, the defendant may demand one physical examination of plaintiff as of right, without advance leave of the court.  (Code Civ. Proc., § 2032.220.) 

If a defendant seeks a further physical examination of plaintiff, or a mental examination, the defendant must first file a motion and “obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).) Such a motion must “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.” (Id., subd. (b).) The court may grant such a motion “only for good cause shown.” (Id., § 2032.320, subd. (a).) A showing of good cause generally requires “that the party 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. Super. Ct. (1987) 43 Cal.3d 833, 840.) 

The moving party¿must support the motion with a meet and confer declaration.  (Code Civ. Proc., § 2032.310, subd. (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, subd. (a).) A mental examination is appropriate only if the plaintiff alleges continuing emotional distress. (Doyle v. Super. 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.) By alleging a causal link between the emotional distress and the defendant's conduct, however, a plaintiff “implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.” (Ibid.) 

“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, subd. (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. Super. Ct.¿(2006) 141 Cal.App.4th 249, 260.)¿¿ 

Discussion

Plaintiff claims to have suffered a traumatic brain injury as a result of her accident.  (Lee Decl., ¶ 2; Exh. L, No. 6.2.)  Accordingly, City seeks leave to conduct a mental (neuropsychological) examination of Plaintiff.  In their motion, City identify the proposed examiner (Dr. Ari Kalechstein); the examiner’s specialty (neuropsychology); the date, time, and location of the testing; and the scope and nature of the examination (the taking of a history and the administration of up to 28 enumerated tests).  The motion is supported by a meet-and-confer declaration.  (Lee Decl., ¶¶ 5-9 & Exh. O.)

Plaintiff has not opposed this motion.

The Court has considered City’s moving papers and finds that all requirements are met.  The motion for leave to conduct a mental examination of Plaintiff is granted.

The Court now turns to two additional issues raised by City in its moving papers.  Both of these issues apparently arose in the meet-and-confer process between counsel.

First, City seeks an order prohibiting Plaintiff from audio recording the examination.  That request is denied.  Plaintiff has a clear and express statutory right under Code of Civil Procedure section 2032.530 to record the entire examination.  If the examiner refuses to permit the recording, Plaintiff may unilaterally terminate the examination.

Second, City seeks an order stating that the raw test data and testing materials be provided only to Plaintiff’s expert, and not to Plaintiff or her counsel.  This is an issue that has been vigorously litigated in a number of cases, and has led to at least one prominent Court of Appeal decision in Randy’s Trucking v. Superior Court (2023) 91 Cal.App.5th 818.  But here, Plaintiff has not filed an opposition to the motion, and so there is no indication from Plaintiff that she opposes this restriction or seeks some alternative order or condition.  Accordingly, in the absence of an opposition, this request by City is granted.

Conclusion 

The Court GRANTS Defendant’s motion for leave to conduct a mental (neuropsychological) examination of Plaintiff.

The Court ORDERS Plaintiff to appear and be subject to a neuropsychological examination by Ari Kalechstein, Ph.D., at Executive Mental Health, 11835 West Olympic Boulevard, Suite 1270E, Los Angeles, California 90064, on January 24, 2025, at 10:30 a.m.

The Court ORDERS that Plaintiff may not be questioned concerning her conversations with her counsel, nor any person affiliated with her counsel or counsel’s offices.

The Court ORDERS that Plaintiff may not be questioned concerning her counsel’s evaluation of any of Plaintiff’s claims against any of the Defendants, nor about any discussions Plaintiff has had with counsel regarding such evaluations.

The Court ORDERS that Dr. Kalechstein may administer the following tests:

a. B–Test: vigilance and information processing speed.

b. Auditory Consonant Trigrams: working memory.

c. Boston Diagnostic Aphasia Exam and/or Western Aphasia Battery: language.

d. Brief Visuospatial Memory Test – Revised: learning and memory.

e. California Verbal Learning Test – 2 or 3: learning and memory.

f. Continuous Performance Test – 2 or 3: attention/information processing speed.

g. Controlled Oral Word Association Test: language and/or executive function.

h. Delis-Kaplan Executive Functioning System: Executive function.

i. Dot Counting Test: information processing speed.

j. Finger Tapping Test: motor function.

k. Grooved Pegboard Test: motor function.

l. Judgment of Line Orientation: perception of the environment.

m. Minnesota Multiphasic Personality Inventory-2 or 2-RF or 3: personality/emotional functioning.

n. Personality Assessment Inventory: personality/emotional functioning.

o. Rey Auditory Verbal Learning Test: learning and memory.

p. Rey–Osterrieth Complex Figure Test: visuoperception, learning and memory, and/or executive function.

q. Ruff Figural Fluency Test: executive function.

r. Scholastic Abilities Test for Adults (SATA): academic achievement.

s. Selective Reminding Test: learning and memory and/or executive function.

t. Stroop Test: attention/information processing speed and/or executive function.

u. Symbol Digit Modalities Test: attention/information processing speed.

v. TOMM: learning and memory.

w. Trailmaking Test-Parts A and B attention/information processing speed and/or executive function.

x. Victoria Symptom Validity Test: attention/information processing speed.

y. Wechsler Adult Intelligence Scale – III or IV: intelligence.

z. Wechsler Memory Scale – III or IV: learning and memory.

aa. Wisconsin Card Sorting Test: executive function.

bb. Woodcock–Johnson Tests of Academic Achievement – IV: academic achievement.

The Court ORDERS that Plaintiff must be permitted to record the entire examination by audio technology. 

The Court ORDERS that if the examiner refuses to permit Plaintiff to record the entire examination, or any part of it, or otherwise substantially interferes with the recording, Plaintiff may unilaterally terminate the examination, without the need for further court order.

The Court ORDERS moving party to give notice.