Judge: Steven A. Ellis, Case: 22STCV25268, Date: 2025-02-14 Tentative Ruling

Case Number: 22STCV25268    Hearing Date: February 14, 2025    Dept: 29

Theus v. Raging Waters of California, Ltd.
22STCV25268
Defendant’s Motion for Leave to Conduct a Compel Mental (Neuropsychological) Examination of Plaintiff

Tentative

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

Background

On August 5, 2022, Alex Theus (“Plaintiff”) filed a complaint against Raging Waters of California, Ltd., City of San Dimas (“City”), County of Los Angeles (“County”), and California Department of Transportation for general negligence and premises liability arising out of an alleged slip and fall on August 2, 2021.

On February 24, 2023, the People of the State of California, acting by and through the Department of Transportation, erroneously sued as California Department of Transportation (“State”), filed an answer.

On February 24, 2023, Festival Fun Parks, LLC, erroneously sued as Raging Waters of California, Ltd. (“Festival” or “Defendant”), filed an answer.

On March 23 and 24, 2023, City and State were dismissed.

On April 28, 2023, County filed an answer.

On January 21, 2025, Festival filed this motion to conduct a mental examination of Plaintiff.  On January 22, 2025, Festival filed an amended notice of motion.

No opposition has been 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 … 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 moving party¿must support the motion with 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 a motion for a further physical examination or a mental examination “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.) 

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

The Court begins with two preliminary matters.

First, the meet and confer requirements is satisfied.  (Hardy Decl., ¶ 3.)

Second, the Court notes that the motion is improperly framed as a motion to compel.  Pursuant to Code of Civil Procedure section 2032.310, subdivision (a), it should have been framed as a motion for leave.  Despite this technical error, the Court will exercise its discretion to treat the motion as a motion for leave and will proceed to consider it on the merits.

Defendant seeks leave to conduct a mental examination of Plaintiff.

Defendant has shown good cause for the examination.  (Hardy Decl., ¶¶ 5-7 & Exhs. D-F.) 

With one exception noted below, Defendant has satisfied all of the substantive and procedural requirements for the relief requested.

The one exception relates to the recording of the examination.  According to the moving papers, Defendant seeks an order restricting Plaintiff’s right to audio record the entire examination.  (Hardy Decl., Exh. H, at 2:23-27.)  That is directly contrary to law.  Code of Civil Procedure section 2032.530, subdivision (a), gives Plaintiff the “right to record a mental examination by audio technology.” That means the entire examination, not just certain parts of it.

If the examiner refuses to conduct the examination in accordance with Code of Civil Procedure section 2032.530, subdivision (a), Plaintiff may unilaterally terminate the examination.

Subject to compliance with section 2032.530, the motion 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 submit to a neuropsychological examination by Heleya Rad, Psy.D on February 27, 2025, at 9 am, at 895 Dove Street, 3rd Floor, Newport Beach, California 92660.  The examination shall consist of the taking of a patient history by interview and the administration of the following tests:

Beck Anxiety Inventory (BAI)

Beck Depression Inventory-2 (BDI-2)

Beck Hopelessness Scale (BHS)

Detailed Assessment of Posttraumatic Stress (DAPS)

Dot Counting Test (DCT)

Mini Mental Status Exam- Brief (MMSE-2-BV) or MoCA Persian Version

Minnesota Multiphasic Personality Inventory-3 (MMPI-3)

Personality Assessment Inventory (PAI)

PTSD Checklist for DSM-5 (PCL-5)

Rey-15 Item + Recognition (Rey-15)

TOMM

Trauma Symptom Inventory-2 (TSI-2)

Victoria (VSVT)

Wide Range Achievement Test (WRAT-4)

No other tests may be administered. 

The examination is not to exceed a maximum length of six hours (excluding breaks).

Both the examiner and Plaintiff shall have the right to record the entire examination (including testing) by audio technology.

Moving party is ordered to give notice.