Judge Steven A. Ellis, Case Number: 21STCV28303, Date: 2024-11-06 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV28303, Date: 2024-11-06 Tentative Ruling

Case Number: 21STCV28303 Hearing Date: November 6, 2024 Dept: 29

Schrader-Vannewkirk v. Becker
21STCV28303
Defendant’s Motion for Leave to Conduct Three Physical Examinations and One Mental Examination of Plaintiff

Tentative

The motion is denied.

BACKGROUND

On August 2, 2021, Diane Schrader-Vannewkirk (“Plaintiff”) filed a complaint against Jacqueline Becker (“Defendant”) and Does 1 through 25, asserting causes of action for motor vehicle negligence and general negligence arising out of an alleged automobile accident occurring on November 19, 2020.

On September 15, 2021, Defendant filed an answer.

On October 3, 2024, Defendant filed this motion seeking leave to conduct three physical examinations of Plaintiff (by a neurologist, a pain specialist, and a rheumatology expert) and one mental examination of Plaintiff.

Plaintiff filed an opposition on October 21, and Defendant filed a reply on October 25.

The hearing was initially noticed for November 1, 2024. For scheduling reasons, the Court continued the hearing to November 6.

When the motion was filed, the trial date was November 6, 2024. On November 4, 2024, the Court granted in part Defendant’s opposed ex parte application and continued the trial to December 3, 2024. No discovery deadlines were extended by that order.

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 (including the blood group) 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 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.”¿ (Id., § 2016.040.)¿¿¿¿

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 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.)¿¿

A court shall not (except under “exceptional circumstances”) order a mental examination if the plaintiff stipulates (1) “that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed” and (2) “that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.” (Code Civ. Proc., § 2032.320, subds. (b) & (c).)

DISCUSSION

Defendant seeks a court order requiring Plaintiff to appear for four medical examinations: (1) neurological exam with Barry I. Ludwig, M.D.; (2) neuropsychological and psychiatric exam with Manuel Saint Martin, M.D.; (3) neurological exam with Joshua O. Prager, M.D.; and (4) a rheumatoid exam with Jeff Sarkozi, M.D.

For at least two threshold reasons, the Court must deny Defendant’s motion.

First, the motion is untimely. Under Code of Civil Procedure section 2024.020, discovery motions must be heard on or before the 15th day before trial. The relevant trial date is November 6; the last day to hear the motion was October 22. But Defendant did not file the motion until October 3 (nine court days before the hearing cutoff).

Second, the motion does not “specify the time, place, manner, conditions, scope, and nature of the examination,” as required by the governing statute. (Code Civ. Proc., § 2032.310, subd. (b).)

Accordingly, the motion is denied.

Plaintiff’s request for sanctions is also denied. Sanctions are requested under Code of Civil Procedure section 2032.250, subdivision (b), but that statute governs motions to compel compliance with a demand for a first physical examination. It does not apply here, where Defendant sought leave for additional examinations under section 2032.310-.320.

Plaintiff offers no other authority for sanctions.

CONCLUSION

The Court DENIES Defendant’s motion for leave to conduct four additional medical examinations of Plaintiff.

Moving Party is to give notice.