Judge: Steven A. Ellis, Case: 22STCV26110, Date: 2024-08-09 Tentative Ruling

Case Number: 22STCV26110    Hearing Date: August 9, 2024    Dept: 29

Kreutzer v. Whole Foods Market California
22STCV26110

Defendant’s Motion for Neuropsychological Examination of Plaintiff

Tentative

The Court DENIES the motion without prejudice.

Background

On August 12, 2022, Gabrielle Kreutzer (“Plaintiff”) filed a complaint against Whole Foods Market California, Inc. for general negligence and premises liability arising out of a slip and fall occurring at the Whole Foods Market located at 6350 West Third Street in Los Angeles on July 16, 2022.

On December 15, 2022, Mrs. Gooch’s Natural Food Market, Inc. dba Whole Foods Market (erroneously sued as Whole Foods Market California, Inc.) (“Defendant”) filed its answer.

On July 17, 2024, Defendant filed this motion to compel Plaintiff’s compliance if a neuropsychological examination. Plaintiff filed an opposition on July 29. No reply has been filed.

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.” (Id., § 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 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.)   

“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.)¿¿ 

¿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 examination will be limited to whatever condition is “in controversy” in the action.¿ (Id., § 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.) 

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’s motion was not timely served.  The motion was served electronically on July 17, 2024.  Papers related to this motion needed to be served on Plaintiff no later than July 16, 2024 – 16 court days before the hearing, plus two court days. (see Code of Civ. Proc., §§ 1005, subd. (b) & 1010.6, subd. (a)(3)(B).) The Court finds service of this motion untimely.

Therefore, the Court DENIES Defendant’s motion without prejudice.

Conclusion 

The Court DENIES WITHOUT PREJUDICE Defendant’s motion for a neuropsychological examination of Plaintiff.

Moving party is ordered to give notice.