Case Number: BC630861 Hearing Date: March 15, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SHELSEE PARADA,

Plaintiff(s),

vs.

JULIAN PABLO VALDEZ, et al.,

Defendant(s).

Case No.: BC630861

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL MENTAL EXAMINATION

Dept. 3

1:30 p.m.

March 15, 2019

Background Facts

Plaintiff, Shelsee Parada filed this action against Defendant, Julian Pablo Valdez for damages arising out of an automobile accident. At this time, Defendant moves for an order permitting him to conduct a mental health (neuropsychological) examination of Plaintiff.

Initial Notes

As an initial note, on 6/12/18, the Court granted an order consolidating BC682495 with BC630861 for all purposes. When Defendant filed this motion, he filed it with case number BC682495. Pursuant to CRC 3.350(b), unless the court orders otherwise when granting the motion to consolidate, the lowest-numbered case in the consolidated case shall be the lead case. Pursuant to CRC 3.350(d), all documents filed in the consolidated case shall include the caption and case number of the lead case, followed by the case numbers of all of the other consolidated cases. Defendant failed to comply with the Rules of Court, which rendered locating the moving papers difficult for the Court. The Court asks Defense Counsel to adhere to all Rules of Court in the future in connection with this and other actions.

As an additional initial note, opposition was timely filed on 3/04/19. However, Plaintiff served the opposition by mail, which is not compliant with CCP §1005(c). The Court has read and considered the opposition despite the improper service, but asks Plaintiff’s attorney to ensure proper service of opposition papers in the future in connection with this and other actions. The Court may exercise its discretion to NOT consider improperly served papers in the future.

Motion to Compel

Law Governing Motions to Compel Mental Health Examinations

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP §2032.320(a).)

The examination will be limited to whatever condition is “in controversy” in the action. (CCP §2032.020(a).) This means the examination must be directly related to the specific injury or condition that is the subject of the litigation. Roberts v. Superior Court (1973) 9 Cal.3d 330, 337. Often, a party’s pleadings put his or her mental or physical condition in controversy … as when a plaintiff claims continuing mental or physical injury resulting from defendant’s acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer. Discovery responses can also frame the issues regarding the injuries and damages alleged.

Where the plaintiff’s injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of the plaintiff. See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.

Parties’ Positions

Defendant moves to compel a mental health examination on the ground that Plaintiff testified at deposition that she suffers emotional distress, anxiety, nervousness, and depression due to the accident.

Plaintiff does not oppose sitting for a mental health examination, and concedes such examination is necessary due to her ongoing mental health damages. She argues, however, that the examination should be limited in scope and duration, and that she should be given any questionnaires ahead of time, so she does not have to waste time filling them out at the office. She also asks that Defense Counsel coordinate the examination so it can be set on a day when Plaintiff is available for a prolonged period of time.

Any reply to the opposition was due on or before 3/08/19. The Court has not received any reply to the opposition, either in BC682495 or in BC630861. The Court will consider any late-filed reply at the time of the hearing, as it is likely the failure to file a reply resulted from Plaintiff’s improper service of the opposition.

Analysis

The parties agree a mental health examination is necessary, so the issue of whether or not to compel one is not before the Court. The issues before the Court include the scope of the examination, the duration of the examination, and the timing of the questionnaires.

Scope of Examination

Plaintiff’s opposition does not specify the exact basis for her concerns about the scope of the examination. She essentially contends Defendant failed to satisfy the requirements of CCP §2032.320(d), which requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.” Defendant attached a proposed demand for mental examination as Exhibit C to his moving papers. The demand lists 67 potential tests to be performed. Plaintiff argues this is not sufficient. In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260, the defendant argued that simply naming the types of tests to be performed, as opposed to the exact tests themselves, was sufficient in the context of a mental health examination. The court of appeals disagreed, and noted that the statute required the defendant to specify the “diagnostic tests and procedures,” which means they must be listed by name.

The Court indicated, “Nor does the discussion in Ragge otherwise persuade us that it would be inappropriate to compel advance disclosure of the test names. Yamaha refers us to a passage in which the Ragge court stated: ‘Because the mental examination provides one of the few opportunities for a defendant to have access to a plaintiff, and the only opportunity for a defendant to have a plaintiff examined by defendant’s expert, some preference should be given to allowing the examiner to exercise discretion in the manner and means by which the examination is conducted, provided it is not an improper examination.’ (Ragge, supra, 165 F.R.D. at p. 609.) In general, we have no quarrel with this proposition. Certainly the examiner should have some discretion in choosing the manner and means of conducting the examination—but only as long as the tests he or she proposes are not unduly invasive or otherwise inappropriate. The way to assure that the tests do not make the examination “improper,” as Ragge puts it, is to require the court to name the tests in its order. This assures that the court has considered any objections to the tests and provides the examiner clear parameters for the examination.”

Nothing in the foregoing suggests that a defendant can list upwards of sixty potential tests in the moving papers, seek a court order that some of those tests can be performed, and then ultimately only perform three or four of the tests. It is unduly burdensome to require Plaintiff’s attorney to review and evaluate over sixty tests to determine whether any of them might be inappropriate, and then to draft an argument about any tests she wishes to avoid, when all of this is an act in futility as many of the examinations are not even being considered by the expert who has been hired to conduct the examination.

The Court understands that sometimes more tests are listed in the moving papers than are ultimately performed. This should, however, be reasonable. The tests listed should all be tests that the expert is seriously considering administering based on the background knowledge about the plaintiff. There should not be any tests listed that will not be administered or that do not apply.

The parties are ordered to meet and confer to limit the scope of the examination, with the foregoing in mind, before it goes forward.

Duration

The demand indicates the examination will take approximately eight hours. Plaintiff argues this is excessive, but does not state why and does not suggest an alternative, shorter duration. The Court finds eight hours is standard for mental health examinations, and no restriction on the time is necessary.

Questionnaires

Plaintiff also argues she should receive the questionnaires in advance, so that she does not have to waste time the day of the examination filling them out. The Court does not wish to impugn Plaintiff’s veracity or intentions, but does find that this is inappropriate. There is a reason the written questionnaires are typically administered at the examination itself, and that reason is to avoid outside influence over the answers. Additionally, there is value in having the answers be those that first pop into a person’s head, as opposed to being ones that are contemplated over time. While this may add a frustrating amount of time to the examination, the Court finds it is not appropriate to permit Plaintiff to receive the questionnaires in advance and fill them out on her own time.

Conclusion

The motion to compel a mental health examination is granted. The attorneys are ordered to meet and confer to agree to the scope of the examination. The duration of the examination is permitted to be up to eight hours. Defendant is not required to provide any questionnaires to Plaintiff in advance. The attorneys are also ordered to meet and confer to agree on a mutually available date for Plaintiff to attend the examination.

Defendant is ordered to give notice.