Judge: Steven A. Ellis, Case: 22STCV02846, Date: 2023-10-02 Tentative Ruling

Case Number: 22STCV02846    Hearing Date: March 1, 2024    Dept: 29

Defendants’ Motion for Leave to Conduct Mental Examination of Plaintiff

Tentative

The motion is granted, subject to certain conditions.

Background 

On January 24, 2022, Plaintiff Ismael Carbajal (“Plaintiff”) filed a complaint for motor vehicle negligence and general negligence against Defendants County of Los Angeles (erroneously sued as “L.A. County Fire Department”) and David Morgan Wright (collectively “Defendants”), arising out of an accident on September 29, 2021. According to the Complaint, Defendants were operating an emergency vehicle traveling eastbound on Highway 126 when tires fell from the vehicle and struck Carbajal’s vehicle, causing injuries to Carbajal.

On November 30, 2023, Defendants filed this motion for leave to conduct a mental examination of Plaintiff. Plaintiff filed an (untimely) opposition on February 20, 2024. Defendants filed a reply on February 23, 2024.

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).)

“If any party desires to obtain discovery … by a mental examination, the party shall obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).) The 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.  The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id., subd. (b).) “An order granting a … 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 shall grant a motion for a … mental examination under Section 2032.310 only for good cause shown.”  (Code Civ. Proc., § 2032.320, subd. (a).)  Good cause 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. Superior Court (1987) 43 Cal.3d 833, 840.)

Discussion

Defendants contend that there is good cause for neuropsychological testing as Plaintiff alleges Traumatic Brain Injury and ongoing cognitive, mental, psychological, and behavioral complaints and damages.  (Ward Decl., ¶¶ 3-6 & Exhs. A-B.) 

In his Opposition, Plaintiff does not object to the testing per se but makes essentially three arguments.

First, Plaintiff argues that the motion does not adequately identify the specific tests that will be administered.  The moving papers identify ten specific tests by name but state that the examination “may include” the administration of these ten tests.

The Court orders that the examination may not administer any test other than the ten tests specifically identified by name in the moving papers.

(As Plaintiff’s native language is Spanish, Defendants also seek to clarify that these ten specific tests will be translated into and administered in Spanish.  The Court so orders.)

Second, Plaintiff argues that the examination should not exceed six hours.  Defendants agree.  The Court so orders.

Third, Plaintiff argues that if the examination proceeds, Plaintiff should receive the raw testing results and an audio recording of the examination.  Both Plaintiff and the examiner have the right to record the examination by audio technology.  (Code Civ. Proc., § 2032.530, subd. (a).)  And the parties have agreed that the raw test results will be provided to Plaintiff’s expert.  (Ward Reply Decl., ¶ 3 & Exh. E.)  The Court so orders.

The Court finds that Defendants have shown good cause and grants the motion for leave to conduct a mental examination of Plaintiff, subject to the conditions set forth in this ruling.

Conclusion

The Court GRANTS Defendants’ motion for leave to conduct a mental examination of Plaintiff.

The Court ORDERS Plaintiff to appear for a mental examination by April D. Thames, Ph.D., a licensed neuropsychologist, on a date and time to be arranged by counsel within 30 days, at 740 Westwood Plaza, Rm C8-841, Westwood, California. 

The Court ORDERS that the scope of the examination will include Plaintiff’s claimed injuries and complaints and will consist of taking history, present status, psychological examination, a review of records, and the following tests (which may be translated into Spanish): (1) Test of Premorbid Functioning; (2) Wechsler Adult Intelligence Scale-IV; (3) Weschler Memory Scale-IV; (4) California Verbal learning Test-3; (5) Brief Visuospatial Memory Test; (6) Delis-Kaplan Executive Functioning System; (7) Trail Making Test – Part A & B; (8) Minnesota Multiphasic Personality Inventory-2-RF; (9) Beck Depression Inventory-2; and (10) Beck Anxiety Inventory.  No other tests will be administered.

The Court ORDERS that the examination will not exceed six hours (excluding breaks).

The Court ORDERS that Plaintiff and the examiner may record the examination by audio technology.

The Court ORDERS that the raw testing results will be provided to Plaintiff’s expert.

Moving Party is to give notice.