Judge: William A. Crowfoot, Case: 20STCV18721, Date: 2022-12-19 Tentative Ruling

Case Number: 20STCV18721    Hearing Date: December 19, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 15, 2020, plaintiff Arman Dayan filed this action against defendant Stanley Schuster arising from a May 7, 2019 pedestrian and motor vehicle collision.  On November 14, 2022, Defendant filed this motion seeking leave for Dylan Galen Harwood, Ph.D. (“Dr. Harwood”) to conduct a mental examination on Plaintiff on January 11, 2023 at 10:00 a.m.

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee.  (Code Civ. Proc., § 2032.220, subd. (a).)  Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court.  (Code Civ. Proc., § 2032.310, subd. (a).)

A mental examination shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.  (Code Civ. Proc., § 2032.020, subd. (c)(1).)  A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination, and shall be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2032.310, subd. (b).)  The Court shall grant the motion only for good cause shown.  (Code Civ. Proc., § 2032.310, subd. (a).) 

Defendant argues that Plaintiff’s mental condition is in controversy because Plaintiff alleges that he suffers from headaches, nausea, memory problems, loss of concentration, loss of balance, fatigue, sound sensitivity, sleep disturbance, and dizziness. 

Plaintiff opposes the motion on the grounds that his mental condition is not in controversy because he is not alleging ongoing emotional distress.  “The only statutorily authorized justification for ordering a mental examination is that the ‘mental condition’ of the examinee is ‘in controversy.’”  (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1886.)  In the absence of an allegation that plaintiff has any current mental injury as a result of defendant’s alleged conduct, her present mental condition is not directly relevant.  (Ibid.) 

However, Plaintiff’s sworn responses to Form Interrogatory 6.3 represent that he is claiming that he is still suffering from memory loss.  This is evidence that his mental condition remains in controversy, regardless of whatever representation that his counsel has made in an email that Plaintiff’s “mTBI [is] resolved.”  (Motion, Ex. B, Email, from Sean Kim at 12:28 p.m. on 8/25/2022.) 

Also, Plaintiff fails to state that he is willing to stipulate that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed and that no expert testimony regarding the usual mental and emotional distress will be presented at trial in support of the claim for damages.  (See CCP § 2023.320, subd. (c).) 

Plaintiff’s argument that Defendant failed to identify the tests to be administered with specificity is unpersuasive.  “The way to describe these ‘diagnostic tests and procedures’–fully and in detail—is to list them by name.”  (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)  Therefore, the list of tests provided by Defendant in Exhibit D of the motion is sufficient. 

Accordingly, Defendant’s motion is GRANTED.  

The examination will take place on January 11, 2023 with Dr. Dylan Galen Harwood, Ph.D., at 11835 West Blvd. Tower, 12th Floor, Suite 1265E in Los Angeles, Californai 90064.  The universe of tests to be conducted during the examination is set forth in Exhibit D of the motion, specifically pages 2 to 3 and paragraph 5 of the Declaration of Dylan Galen Harwood, Ph.D.  The examination will not exceed 8 hours, excluding breaks.    Defendant is to submit a revised proposed order identifying these examinations and the

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.