Judge: Steven A. Ellis, Case: 22STCV10554, Date: 2024-09-05 Tentative Ruling

Case Number: 22STCV10554    Hearing Date: September 5, 2024    Dept: 29

Gonzalez v. County of Los Angeles
22STCV10554
Defendants’ Motion to Compel Neurological Examination

Tentative

The Court will call this matter.

Background

On March 28, 2022, Michelle Gonzalez (“Plaintiff”) filed a complaint against County of Los Angeles, Kristofor Masson (collectively “Defendants”), and Does 1 through 100 for negligence and statutory liability arising out of an automobile accident occurring on August 2, 2021.

On April 11, 2022, Defendants each filed an answer to the complaint.

On August 7, 2024, Defendants filed two motions.  In the first motion, set for hearing on September 5, Defendants seek an order compelling Plaintiff to appear for a neurological examination.  In the second motion, set for hearing on September 9, Defendants seek an order compelling Plaintiff to appear for an examination with a pain management specialist. 

As to the motion set for hearing on September 5, Plaintiff filed a limited opposition on August 23, and Defendants filed a reply on August 28.

Discussion

As a threshold matter, Defendants are the moving parties and have the burden of explaining what relief they are seeking and the authority under which the relief is sought. This is not clear to the Court. 

Code of Civil Procedure sections 2032.220 through 2032.260 govern the first request by a defendant for a physical examination of a plaintiff.

Code of Civil Procedure sections 2032.310 through 2032.320 govern any subsequent request for a physical examination, as well as any request for a mental examination.

Different standards and procedures govern a first physical examination versus a subsequent physical examination.  Different standards and procedures govern a physical examination versus a mental examination.

In their notice of motion, Defendants state that this motion is brought under section 2032.220 and section 2032.320.  But that can’t be true.  This is either a physical examination or a mental examination.  If it is a physical examination, it is either the first examination or a subsequent examination.  The moving papers don’t explain what it is.

In their memorandum, Defendants seem to rely primarily on sections 2032.310 and 2032.320, indicating that they are seek leave to conduct either a mental examination or a second physical examination.  (Mem., at pp. 5-6.)  In their reply, Defendants reference section 2032.530, indicating that they think that the examination is a mental examination and not a physical examination.  (Reply, at p. 4.)  In general, and subject to certain exceptions, however, the Court views neurological examinations as physical examinations and neuropsychological examinations as mental examinations.

The Court will call this matter to seek additional clarity from the parties.