Judge Steven A. Ellis, Case Number: 22STCV16190, Date: 2025-04-01 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV16190, Date: 2025-04-01 Tentative Ruling

Case Number: 22STCV16190 Hearing Date: April 1, 2025 Dept: 29

Jones v. The Vons Companies, Inc.
22STCV16190
Defendant’s Motion for Leave to Conduct Neurological Examination of Plaintiff

Tentative

The motion is granted.

Background

On May 16, 2022, Trenna Jones (“Plaintiff”) filed an action against The Vons Companies, Inc. (“Defendant”), Luis Rivera, and Does 1 through 10 for premises liability arising out of a slip and fall on May 22, 2020.

On May 17, 2023, the Court dismissed Luis Rivera at Plaintiff’s request.

On May 22, 2023, Defendant filed an answer.

On February 10, 2025, Defendant filed this motion for leave to conduct neurological examination of Plaintiff.

No opposition was filed.

Legal Standard

“Any party may obtain discovery . . . by means of a physical or mental examination of … a party to the action … in any action in which the mental or physical condition (including the blood group) of that party … 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 motion must also be “accompanied by a meet and confer declaration.” (Ibid.) 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 court may grant the motion “only for good cause shown.” (Code Civ. Proc., § 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.) “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.” (Ibid.) But when a plaintiff alleges a causal link between emotional distress and the defendant's conduct, a plaintiff “implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.” (Ibid.)

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.)

“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

Defendant moves for leave to conduct a neurological examination of Plaintiff. Defendant contends Plaintiff has put her neurological health at issue as she claims to have a traumatic brain injury, experiences headaches daily, has short term memory problems, and her dialect randomly changes to a Jamaican or Belizean sounding dialect. (Macksoud Decl. ¶ 4; see also Exh. A, Plaintiff’s responses to Form Interrogatories, No. 6.3.)

The Court finds based on Plaintiff’s responses to Form Interrogatories, Defendant has established good cause for the requested neurological examination.

Defendant identifies the examiner, by Dr. Edwin C. Amos, III, and requests that the examination proceed at 2021 Santa Monica Blvd., Suite 525E in Santa Monica, on May 19, 2025. The testing is to consist of the following:

(1) Mental Status: This part of the examination involves speaking with the patient, and assessing their level of alertness, the ability to comprehend and make language, and their general fund of knowledge. Assessment of attention and memory function may also be performed. Visuospatial performance tasks, simple calculations and writing are often included in this assessment.

(2) Cranial Nerves: The 12 cranial nerves are the nerves which emanate from the base of the brain and control such functions as vision, eye movement, facial strength and sensation, hearing, phonation and tongue movement. These are tested clinically by performing various maneuvers to assess each of these functions. For example, the visual fields may be tested by asking the patient to identify or count fingers which are held in the periphery, extraocular movements are assessed by asking the patient to follow a finger as it moves in different directions, facial strength and sensation are assessed by visual inspection and the ability to detect tactile stimuli on the face respectively, et cetera.

(3) Motor Examination: This involves testing the patient's muscles including the strength and coordination. The muscles are also inspected for evidence of atrophy or abnormal motor tone. This is usually performed with the patient standing or sitting by manually inspecting and testing each of the individual muscle groups.

(4) Gait and Balance Examination: The patient is asked to ambulate and perform turns in this part of the examination. Balance testing including the Romberg test, tandem gait and assessment of the ability to stand on either leg are performed.

(5) Sensory Examination: This involves testing the patient's ability to detect stimuli such as light touch, a cold temperature source, vibration and position sense. This is performed with the examiner's hand, a cotton swab and an aluminum tuning fork. The stimuli are applied to the skin and the patient is asked to report if they are able to detect them.

(6) Reflex Examination: The deep tendon reflexes are evaluated by gently tapping over the tendons (at the biceps, triceps, knee/patella or the ankle/Achilles) to evaluate the motor response to this stimulus.

(Exh. D.)

Defendant has shown good cause for the requested examination. No opposition has been filed. The motion is granted.

Conclusion

The Court GRANTS Defendant’s motion for leave to conduct a neurological examination of Plaintiff Trenna Jones.

The Court ORDERS Plaintiff to appear for and submit to a neurological examination by Dr. Edwin C. Amos, III, on _________ a.m./p.m. on May 19, 2025, at 2021 Santa Monica Blvd., Suite 525E in Santa Monica.

The Court ORDERS that the examination is to consist only of the testing set forth in the moving papers and that the examination must comply with all applicable provisions of the Civil Discovery Act.

Moving party is ordered to give notice.