Case Number: BC696866 Hearing Date: January 22, 2020 Dept: O

Defendant Essex Property Trust, Inc.’s motion for order granting leave for mental examination and physical examination of Plaintiff Leslie Sparkuhl and order compelling plaintiff to attend the examination(s) is GRANTED. Plaintiff is ORDERED to appear at the next noticed examinations. Sanctions are imposed against Plaintiff in the sum of $1,950.00 and payable within 30 days.

Defendant Essex Property Trust, Inc. (“Defendant”) moves for an order granting leave for mental examination and physical examination of Plaintiff Leslie Sparkuhl (“Plaintiff”) pursuant to CCP § 2032.210 et seq.

Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition of that party or other person is in controversy in the action. (CCP § 2032.020(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. (CCP § 2032.310.) An order for a physical or mental examination must be based on findings of good cause. (CCP § 2032.320(a).)

The Discovery Act mandates the imposition of sanctions on the party 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. (CCP § 2032.250(b).)

Defendant contends that it is entitled to conduct a medical and mental examination because Plaintiff put her medical and mental state at issue in her complaint by alleging Negligent Infliction of Emotional Distress (“NIED”) and general negligence.

Plaintiff contends in opposition that she had sent Defendant her Responses and Objections to Defendant’s Demand for Defense Mental and Medical Examination, limiting the scope of the exams. (Burton Decl., ¶¶ 5-6.) Plaintiff contends that Defendant’s examiners ignored these limitations.

Plaintiff alleged emotional distress damages in addition to physical damage caused by prolonged and continuous exposure to carbon monoxide. Since Plaintiff has put her current emotional state and physical state at issue, good cause exists to order the examinations.

While Plaintiff has a point about Defendant’s examiners needing to stay within the limited scope that Plaintiff outlined, the Court finds Plaintiff’s limitations unreasonable. What Plaintiff calls an unfettered review of her medical, employment, marital, family, and drug use histories are baseline questions that any doctor would ask upon intake of a patient. Given that Plaintiff has already answered written discovery about her conditions, she should not feel so overwhelmed by being examined by Defendant’s examiners. Plaintiff also has not shown how these baseline questions by the examiners turned the examination into a “deposition.” However, Plaintiff will be allowed to audiotape the proceeding if she wishes to do so as a way to ensure that no offensive tactics will be used at her exams. (CCP § 2032(g)(2).) Finally, this Court critically notes that Plaintiff failed to adequately meet and confer with Defendant regarding the limitations to the scope of the examinations.

Thus, the motion is GRANTED. Reasonable sanctions of $1,950 are imposed against Plaintiff, which will be payable within 30 days.