On 28 February 2014, the motion of defendant Summer Winter Action Tours, LLC to compel plaintiff Wilson Kong to submit to an independent medical evaluation and for monetary sanctions was argued and submitted. Plaintiff Wilson Kong filed a formal opposition to the motion in which he also seeks monetary sanctions.
All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).
Statement of Facts
This personal injury action arises from an alleged assault at a night club located in Lake Havasu, Arizona, in the Spring of 2010. Wilson Kong (“Plaintiff”), who was a college student at the time of the incident giving rise to this action, traveled to Lake Havasu for spring break as part of a tour group operated by Summer Winter Action Tours, LLC (“SWAT”).
According to the allegations of the complaint, on the night of 28 March 2010, Plaintiff went to a night club located at the London Bridge Resort where he was assaulted by Austin Specht and Sean Jenkins. Plaintiff alleges that he was hit in the head by Austin Specht, causing him to fall to the ground where he again hit his head on the concrete. As a result of the incident, Plaintiff claims that he sustained severe head injuries, including brain injuries.
Based on the above allegations, on 21 March 2012, Plaintiff instituted the present action against Defendant, London Bridge Resort, LLC, Austen Specht, and Sean Jenkings raising claims for negligence, premises liability, common law dram shop liability, breach of contract, and false promise. Plaintiff seeks general and special damages, including medical expenses incurred as a result of the incident.
Plaintiffs deposition was taken on 21 November 2013. in the segment that was provide in to this Court, Plaintiff states ” ever since the incident, I have a very extremely short temper. I wasn’t very violent before. And now, if I have tantrums I just get extremely angry and I get– I don’t know how to explain it. It just comes and I am extremely angry. I flipped the bed upside down [ looking for my keys]. [I attribute these sort of emotional outbursts to] the head injury. [My anger is not related to my unsettled employment situation].
In his letter of 30 December 2013, counsel for Plaintiff advises defense counsel that “Wilson has not claimed ‘psychiatric injury,’ per se. He claims brain injuries and the natural sequellae [sic] from those injuries. It is indisputable that he suffered brain injuries. An indiscriminate psychiatric examination by Dr. Strassburg would not be appropriate or authorized by the statute.”
Discovery Dispute
On 1 November 2013, SWAT served Plaintiff with a “Demand for Independent Physical and Mental Examination of Wilson Kong.” The demand required Plaintiff to appear at the office of Mark Strassberg, M.D., a neurologist and psychiatrist, at 8:30 a.m. on 6 December 2013. The notice indicated that Dr. Strassberg would conduct the evaluation with the assistance of psychologist Joanna Berg, Ph.D., who would administer the written assessments during the evaluation. The notice also listed 11 assessments likely to be performed during the evaluation. (Decl. of Scott Brust in support of Defendant’s Mot. to Compel, Ex. E.)
On 6 November 2013, Plaintiff’s counsel contacted counsel for SWAT to discuss the examination notice. Plaintiff’s counsel objected to the breadth of the examination. The next day Plaintiff’s counsel sent a letter to defense counsel outlining Plaintiff’s objections. (Id., Ex F.) In the letter, Plaintiff’s counsel again objected to the breadth of the examination, stating that the physical examination by Dr. Strassberg followed by a neuropsychological examination, which may include 17 assessments, “is the 21st century equivalent of the Spanish Inquisition.” (Id.)
Plaintiff’s counsel also indicated that SWAT had no statutory right to demand a mental examination and that such examinations must be agreed to by the parties or ordered by the Court. (Id.) Plaintiff’s counsel also indicated that the notice was not specific with regard to the assessments to be performed, that SWAT could not require Plaintiff to undergo a “general physical examination” because Plaintiff has not put his general health at issue, that Plaintiff would not agree to a full day of examination, and that Plaintiff would not agree to the provision in the notice stating that Plaintiff would be held responsible for a “no show” fee.
On 25 November 2013, Plaintiff served SWAT with a formal response to the examination demand. (Id., Ex. G.) In his response, Plaintiff objected to SWAT’s demand as follows:
Plaintiff objects to the demand because it does not properly set out the time for the physical examination. Plaintiff objects to Defendant’s demand because it fails properly to “specify the . . . manner, conditions, scope, and nature of the examination.” See Code of Civil Procedure section 2032.220(c). The demand fails to specify any tests and procedures for the physical examination. It is vague and ambiguous and overly broad. The demand improperly incorporates a demand for a mental examination and psychological testing. The psychological tests listed are inappropriate. The proposed examination is overly burdensome, and would constitute harassment. Plaintiff will not appear for it. (Id.)
On 11 December 2013, counsel for SWAT called Plaintiff’s counsel to meet and confer on Plaintiff’s objections to the examination demand. During that call, Plaintiff’s counsel reiterated his objections and objected to any psychiatric elements of the examination. Plaintiff’s counsel would not, however, stipulate that Plaintiff would NOT make a claim for emotional damages.
On 18 December 2013, counsel for SWAT sent a letter to Plaintiff’s counsel along with a proposed amended examination notice.
On 30 December 2013, Plaintiff’s counsel responded to defense counsel’s letter. In his letter, Plaintiff’s counsel agreed that SWAT is entitled to have a neuropsychological examination of Plaintiff but otherwise maintained his objections. Specifically, Plaintiff’s counsel reiterated that the physical examination and mental examinations should be separate. Plaintiff’s counsel requested that defense counsel serve notice of a physical examination in compliance with Code of Civil Procedure section 2032.220 and then indicated that the parties could agree, or Defendant could seek leave from the Court, to take the neuropsychological examination.
On 10 January 2014, Defendant filed the motion presently before the Court, asking the Court to compel Plaintiff to submit to a neuropsychological examination to be conducted by Dr. Strassberg with the assistance of Dr. Berg. Plaintiff filed a formal opposition on 14 February 2014 and Defendant filed his reply 21 February 2014.
Discussion
As this Court sees the issue, there may be a misunderstanding between counsel on what they understand to be neurologic versus psychologic/psychiatric injuries.
Many psychiatric issues are as a result of discrete neurologic injury. Neurology and psychiatry were once in the same boarded specialty and many neurologists and psychiatrists still practice in both areas. Neuropsychologists attempt to obtain specific information on neurologic and psychiatric injury with the performance of their objective examinations and tests.
Are There “Garden-Variety” Brain Injuries?
The California Supreme Court, in Roberts v. Superior Court (1973) 9 Cal.3d 330,339 found that “any physical injury is likely to have a ‘mental component’ in the form of the pain suffered by the injured person, at least insofar as he is conscious of the physical injury.” The Court recognized that “in every lawsuit involving personal injuries, a mental component may be said to be at issue, in that limited sense at least.” Looking to prescribe a limit, the Court noted “to allow discovery of past psychiatric treatment merely to ascertain whether the patient’s past condition may have decreased his tolerance to pain or whether the patient may have discussed with his psychotherapist complaints similar to those to be litigated would defeat the purpose of the privilege established by [Evidence Code] section 1014.”
In Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017, the Court noted “cases reviewed which find direct relevance, all appear to include specific averments or reasonable interpretations drawn from the pleading which clearly place mental condition in issue. (See, e.g., In re Lifshutz, 2 Cal.3d 415; Britt v. Superior Court, 20 Cal.3d 844)”
There isn’t much case law specifically about CCP section 2032.320(c). There is one unpublished case that addresses garden variety emotional distress, Chiachi v. Super. Ct. (2005) 2005 Cal.App.Unpub.LEXIS 8464. The court in Chiachi only evaluated the adequacy of the stipulation pursuant to CCP section 2032.320(c). The Chiachi court decided to defer to the trial court regarding whether the emotional distress was “garden variety” emotional distress.

In Ruhlmann v. Ulster County Dept. of Social Services(2000) 194 F.R.D. 445, 449, fn. 6 stated that “garden variety” emotional distress is “ordinary or commonplace emotional distress. Garden-variety emotional distress is that which is simple or usual. In contrast, emotional distress that is not garden-variety may be complex, such as that resulting in a specific psychiatric disorder, or may be unusual, such as to disable one from working.” Davis v. Super. Ct.(1992) 7 Cal.App.4th 1008, 1015-1016 states that “Pain and suffering have included physical pain, fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarassment, apprehension, terror and ordeal,” but the Daviscourt does not go into more detail. The courts generally have held that the determination of what constitutes “garden variety” is made on a case by case basis.
Should this matter proceed to a hearing, this Court will ask counsel what are the normal consequences of a brain injury, and whether those consequences are dependent upon the extent of the injury. Further, this Court will ask counsel for Plaintiff if he intends to call any psychiatrist or psychologist as a witness.
A. Motion to Compel Independent Medical Evaluation
SWAT moves the Court for an order compelling Plaintiff to appear for an independent medical/mental evaluation in accordance with SWAT’s amended notice of examination served on Plaintiff on 18 December 2013.
Plaintiff argues that SWAT’s motion is procedurally deficient for a number of reasons and should therefore be denied.
1. Statutory Framework
Physical and mental examinations are governed by sections 2032.010 through 2032.650 of the Code of Civil Procedure. Under section 2032.220, a defendant in a personal injury case has the right to one physical examination of the plaintiff, without leave of court, simply by serving a written demand on plaintiff. (Code of Civ. Proc. [“CCP”], § 2032.220, subd. (a) [“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff”].) The demand must specify (1) the date and time of the exam, (2) the place of the exam, (3) the examiner’s identity and specialty, and (4) the manner, conditions, scope and nature of the examination. (CCP, § 2032.220, subds. (a)(2), (c) & (d).)
Once the plaintiff has been served with the demand for a physical demand, section 2032.230 requires the plaintiff to serve the defendant with a response. The response may (1) agree to the exam outright, (2) agree to a modified exam, or (3) refuse to comply for reasons stated in the response. (CCP, § 2032.230, subd. (a).) Section 2032.250 then authorizes the defendant to file a motion to compel the examination if the plaintiff refuses to attend the examination and the defendant believes the refusal is unwarranted. (CCP, § 2032.250, subd. (a).)
If, on the other hand, the defendant desires to obtain discovery by a mental examination, as SWAT does in this case, or by a physical examination other than that described in section 2032.220, the defendant must obtain leave of court. (CCP, § 2032.310, subd. (a).) A motion for such examinations, like the demand for a physical examination under section 2032.220, “shall 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.” (CCP, § 2032.310, subd. (b).) There is nothing in the section that requires the moving party to have first served a demand for the examination. Indeed, the language of section 2032.310 suggests that the motion be filed first. (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8I-12 [“This is the only procedure as to which a court order is still required before commencing discovery.”].)
Section 2032.320 governs orders granting motions for physical and mental examinations authorized under section 2032.310. The section provides that “[t]he court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (CCP, § 2032.320, subd. (a).) This generally requires a showing both of (1) relevancy to the subject matter, and (2) specific facts justifying the discovery, i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. (See Vinson v. Sup. Ct. (1987) 43 Cal.3d 833, 840.) The good cause standard exists to protect the plaintiff’s privacy interests from unnecessary intrusion. (Carpenter v. Sup. Ct. (2006) 141 Cal.App.4th 249, 259.)
Additionally, section 2032.320 requires the court to set forth certain details of the examination in the order granting a motion for a physical or mental examination under section 2032.310:
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. (CCP, § 2032.320, subd. (d), emphasis added.)
Section 2032.320, subdivision (d), mirrors the requirements of what must be contained in a party’s motion under section 2032.310 with one important addition. As the italicized language above indicates, section 2032.320, subdivision (d), requires the court’s order to specify the diagnostic tests and procedures to be used during the examination.
In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, the First District Court of Appeal had occasion to interpret section 2032.320, subdivision (d). The court held that the plain language of section 2032.320, subdivision (d), “is that 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.” (Id., p. 260, emphasis in original.)
The court went on to hold that, “[t]he way to describe these ‘diagnostic tests and procedures’—fully and in detail—is to list them by name.” (Ibid., emphasis in original.) The court held that this requirement ensures that the trial court “has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant’s need for a meaningful opportunity to test the plaintiff’s claims of physical or mental injury.” (Id., p. 261.)
Concerning the practical effect of section 2032.320, subdivision (d), the Carpenter court stated the following:
Insisting that section 2032.320 means what it says—that the diagnostic tests and procedures must be specified—will result in an orderly and efficient means of balancing the interests of the plaintiff and defendant. The defendant, aware that the court must name the diagnostic tests and procedures in the order granting a mental examination, will identify the potential tests and procedures in its moving papers. The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary. If the parties cannot agree on the specific tests that may be employed, the matter will be resolved by the court in deciding the defendant’s section 2032.310 motion. (Carpenter, supra, 141 Cal.App.4th at p. 267.)
The court also made clear in Carpenter that the failure to list the diagnostic tests or procedures in the trial court’s order is reversible error. (Carpenter, supra, 141 Cal.App.4th at p. 269.)
2. Analysis
SWAT served Plaintiff with a demand for a neurologic and psychiatric examination on 1 November 2013. As Plaintiff points out, the Code does not authorize defendants to serve demands for mental examinations. Section 2032.310 requires a party seeking a mental examination to seek leave of court. Thus, SWAT’s service of the demand was improper.
Similarly, SWAT filed the present motion under the auspices of section 2032.250. That section authorizes defendants to file motions to compel compliance with a demand for a physical examination under section 2032.220. The section does not apply to mental examinations and does not provide a proper legal basis for the relief SWAT seeks in this case.
Neither of the above procedural improprieties, standing alone, is fatal to SWAT’s motion. This Court believes that it would be expeditious to treat the current motion as one seeking a mental examination or at least a component of one.
Section 2032.310 requires a motion for a mental examination to “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.” (CCP, § 2032.310, subd. (b).) SWAT’s motion does not set forth the information required by 2032.310, subdivision (b).
SWAT’s amended notice of examination, which is attached to the motion, lists potential tests to be administered as part of the psychiatric portion of the exam. The amended notice provides that “[t]his examination shall include obtaining a medical history, neurologic and psychiatric examination, and psychological testing as described below, necessary to evaluate the injuries alleged by Plaintiff in this matter.” (Decl. of Brust, Ex. H.) The amended notice goes on to list several tests that could potentially be given during the psychological examination.
Dr. Strassberg—whose declaration is attached to SWAT’s motion—has provided the Court with information substantiating such a claim. His declaration incorporates the notice of motion which includes 10 specific tests.
SWAT’s motion to compel Plaintiff to submit to an independent physical and mental examination is therefore GRANTED
B. Requests for Monetary Sanctions
Code of Civil Procedure, § 2023.040 states:
“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”
See also Rule of Court 2.30(c): “Sanctions must not be imposed under this rule except on noticed motion by the party seeking sanctions or on the court’s own motion after the court has provided notice and an opportunity to be heard. A party’s motion for sanctions must (1) state the applicable rule that has been violated, (2) describe the specific conduct that is alleged to have violated the rule, and (3) identify the attorney, law firm, party, witness, or other person against whom sanctions are sought. The court on its own motion may issue an order to show cause that must (1) state the applicable rule that has been violated, (2) describe the specific conduct that appears to have violated the rule, and (3) direct the attorney, law firm, party, witness, or other person to show cause why sanctions should not be imposed against them for violation of the rule.”
1. SWAT’s Request
SWAT requests monetary sanctions in the amount of $1,635 against Plaintiff and/or his attorneys under Code of Civil Procedure section 2032.250, subdivision (b). The section cited by SWAT provides that “[t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
The section cited by SWAT is not applicable in this case. That section only applies to motions to compel physical examinations. SWAT seeks an order compelling a mental examination. Moreover, even if the section cited by SWAT did apply, SWAT was not successful in bringing the motion to compel the examination. Accordingly, SWAT’s request for monetary sanctions is DENIED.
2. Plaintiff’s Request
Plaintiff requests monetary sanctions against SWAT and its attorneys in the amount of $5,277.50. Plaintiff cites Code of Civil Procedure section 2023.010 as the basis for the request. That section describes various actions that constitute misuses of the discovery process. (See CCP, § 2023.010, subds. (a) – (i).) Nothing in that section authorizes the Court to award sanctions.
Moreover, section 2023.030, which Plaintiff does not cite, only authorizes an award of sanctions for the misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method.” (CCP, § 2023.030.) Because Plaintiff has failed to provide the Court with authority authorizing the award of monetary sanctions, his request for such sanctions is DENIED.
Conclusion and Order
Defendant’s motion to compel Plaintiff to submit to an independent medical evaluation is GRANTED. , ( examination is to take place within 45 days in a code-compliant manner.
Defendant’s request for monetary sanctions is DENIED.
Plaintiff’s request for monetary sanctions is DENIED.