Case Number: BC692333 Hearing Date: June 18, 2019 Dept: 4A

Motion to Compel Defense Mental Examination and Motion to Continue Trial

The Court considered the moving, opposition, and reply papers and rules as follows.

BACKGROUND

On January 31, 2018, Plaintiffs Jose Manuel Arciniega and Jose de Jesus Galvan Martinez filed a Complaint against Defendants for negligence and negligence per se based on a motor vehicle accident involving a Toyota and a freightliner truck that occurred on June 28, 2017.

On May 30, 2019, Defendants brought an ex parte application for an order shortening time to hear their motion to compel Plaintiff Jose Manuel Arciniega to appear for a defense neurological exam, and/or, in the alternative, for a continuance of the trial date. The Court granted the ex parte application to shorten time, set the hearing for June 18, 2019 and a briefing schedule, and did not address Defendants’ alternative request for a trial continuance.

On May 30, 2019, Defendants also filed a motion to continue the trial date and schedule the motion for hearing on June 18, 2019 to be heard along with their motion to compel a neurological exam. Defendants’ motion for a trial continuance was filed just 13 court days before the scheduled hearing.

Trial is set for September 23, 2019.

PARTY’S REQUEST

Defendants AFS Investments, LLC dba LMS Transport, LMN Incorporated dba LMN Concrete & Grinding, Margara Espana, and Valero Refining Company-California request that the Court issue an order compelling Plaintiff Jose Manuel Arciniega to submit to a second mental examination and continuing trial.

LEGAL STANDARD

California Code of Civil Procedure section 2032.220, subdivision (a) states:¿“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:¿ (1) The examination does not include any diagnostic test¿or procedure that is painful, protracted, or intrusive.¿ (2) The examination is conducted at a location within 75 miles of the residence of the examinee.”¿¿¿¿

California Code of Civil procedure section 2032.310 states: “(a)¿ If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.¿ (b)¿ A motion for an examination under subdivision (a) 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.¿ The motion shall be accompanied by a meet and confer declaration under Section 2016.040.¿ (c)¿ Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”¿¿

California Code of Civil Procedure section 2032.320 states: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d)¿ 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.”¿¿¿¿

DISCUSSION

Plaintiff Jose Manuel Arciniega has already attended a mental examination with a neuropsychologist. In their request for a second mental examination, Defendants emphasize that their request for a neurological examination arises from Plaintiff’s claim of a traumatic brain injury and that the sought-after neurological examination is completely different from the neuropsychological testing that was already conducted. While this may be true – and indeed might support a good cause finding to allow a second examination – Defendants’ showing of the distinct character of the second examination is undermined by its failure to provide a description of the “time, place, manner, conditions, scope, and nature of the examination” as is required under Code of Civil Procedure section 2032.310(b). Instead, Defendants’ motion merely identifies the expert they have hired to examine Plaintiff and argue, without any evidentiary support, that the examination their neurologist will perform is markedly different from the neuropsychological examination to which Plaintiff has already submitted.

In addition to sapping Defendants’ motion of its force, the failure to specify the “time, place, manner, conditions, scope, and nature of the examination” of the proposed examination renders the motion deficient. Defendants contend that they need not provide this information until after the Court has authorized the second mental examination. But this argument is contrary to the clear language of the statute. (Code of Civil Procedure section 2032.310(b) [“A motion for an examination under subdivision (a) 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.”). This provision is an integral part of a motion to compel a further examination because it directs a moving party to provide critical information about the proposed examination. Having failed to comply with this important provision, Defendants have not shown good cause for the examination they seek. Accordingly, the Court denies the motion to compel.

Defendants filed a motion to continue trial just 13 court days before the hearing. Having granted Defendants’ ex parte application to set their motion to compel, the Court did not address the alternative request to continue the trial date. Certainly the Court did not grant leave to file a motion to continue trial on shortened time. Thus, Defendants’ motion to continue trial is untimely under Code of Civil Procedure §1005(b) and, as such, is not considered by the Court on the merits.

Defendants’ motions are DENIED for the reasons set forth above.

Defendants are ordered to give notice of this ruling.