Case Number: BC557873 Hearing Date: May 09, 2016 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ROSARIO CORTEZ,
Plaintiff(s),
vs.

HARRY BRIDGES SPAN SCHOOL, et al.,
Defendant(s).

Case No.: BC557873

[TENTATIVE] ORDER DENYING MOTION TO COMPEL DEFENSE MENTAL EXAMINATION

Dept. 92
1:30 p.m. — #
May 9, 2016

Plaintiff, Rosario Cortez, by and through her GAL, Cesareo Cortez, filed this action against Defendants, Harry Bridges Span School and LAUSD for damages arising out of a door slam incident that resulted in the loss of the tip of Plaintiff’s pinky finger.

At issue at this time is whether or not Defendant should be permitted to conduct a defense mental health examination of Plaintiff.

As an initial note, Defendant argues, in reply to the opposition, that the opposition should not be considered because it was late-filed and late-served. The opposition was due on or before 4/26/16. Plaintiff filed the opposition on 4/27/16 and served it by mail and fax the same day. Defendant contends there is no agreement in place permitting fax service, and service by mail is not reasonably calculated to ensure delivery by the next business day.

The motion is being denied due to failure to meet the moving burden (see discussion below), and therefore the Court’s decision to consider or not consider the opposition will not change the outcome of the ruling. Plaintiff’s is requested to ensure full compliance with CCP §1005 in the future in connection with this and other actions; the Court agrees with Defendant that service by mail does not comply with §1005(c), and Plaintiff’s attorney must serve future papers by express mail delivery. The parties are encouraged to consider entering into a stipulation to accept service by fax or e-mail to avoid service delays in the future.

Plaintiff has offered to stipulate, per CCP §2032.320, that she (a) is not making a claim for mental or emotional distress over and above that usually associated with the injuries claimed, and (b) will not provide expert testimony concerning mental or emotional distress at the time of the trial. Per CCP §2032.230(b), a defendant cannot conduct a defense mental health examination in light of such a stipulation, unless the defendant shows “exceptional circumstances” that warrant such an examination.

Defendant argues, in its moving papers, that Plaintiff’s young age (she was five at the time of the incident) and claims of ongoing emotional distress to date (more than two years later) are sufficient to show “exceptional circumstances” that justify an examination. Defendant provides the Declaration of Dr. Roxy Szeftel, M.D., an expert in the field of child psychiatry. Szeftel opines that there is no amount of mental distress that is “typical” of Plaintiff’s claimed physical injuries because of Plaintiff’s age; she opines that children experience greatly varied responses to physical injury, and it is necessary to evaluate Plaintiff personally to determine the amount of ongoing emotional distress she is experiencing.

Defendant’s argument ignores the language of the statute: the statute requires the plaintiff to stipulate that she will not seek to recover emotional distress or mental suffering damages in excess of those usually associated with the physical injury at issue. Thus, at the trial in this case, Plaintiff’s personal experience of emotional distress or mental suffering will be irrelevant; the only evidence that should be presented is the evidence of how much emotional distress a “normal” person should experience as a result of the physical injury suffered. Defendant will be free to put on an expert on this issue, and it will be up to the jury to determine the amount of compensation attributable to emotional distress that would be “typical” of the claimed physical injuries.

Because Plaintiff’s personal experience of emotional distress/mental suffering will not be at issue at trial, the motion to compel must be denied.

Plaintiff argues sanctions should be imposed in connection with the motion. Plaintiff cites no authority for her request for sanctions. Additionally, the Court finds Defendant acted in good faith in connection with the filing of the motion. The request for monetary sanctions is therefore denied.

Dated this 9th day of May, 2016

Hon. Michelle Williams Court
Judge of the Superior Court