Case Number: BC663004 Hearing Date: November 28, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

JOSEPH VALLE JR et al.,

Plaintiff,

v.

ALAN ESCARPE, et al.,

Defendants.

Case No.: BC663004

Hearing Date: November 28, 2018

[TENTATIVE] order RE:

Motion to compel independent medical examination

BACKGROUND

This case arises out of a motor vehicle collision. Defendants Alan Escarpe and James Richard Escarpe (jointly “Defendants”) move for an order compelling Plaintiff Karina Valle to submit to a psychological examination by Dr. Dean Delis. Plaintiff opposes the motion, and Defendants have replied.

Legal Standard

Where the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may seek discovery by physical examination of the plaintiff. (Code Civ. Proc. §§ 2032.020, 2032.220.)[1] A defendant is permitted to demand one physical examination of the plaintiff in a personal injury action, as long as the examination complies with the statutory requirements. (§ 2032.220, subd. (a).)

Should a party wish to perform a subsequent physical examination or any mental examination, a party must obtain leave of court. (§ 2032.310, subd. (a).) Section 2032.310(b) provides that the motion “shall specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination.” A meet and confer declaration must also accompany the motion. (§ 2032.310, subd. (b).) There must be a showing of “good cause” for a motion compelling an examination to be granted. (§ 2032.320, subd. (a).)

Further, an order granting either a physical or mental examination must 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.” (§ 2032.320, subd. (d).) The order for the mental examination must specify the diagnostic tests to be performed “by naming the test and procedures to be performed.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 261–262.) “Requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the 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. at 261.)

DISCUSSION

Defendants assert that throughout the discovery process including written discovery and depositions, plaintiff Karina Valle did not claim psychological injuries related to this accident at issue in this action. Defendants contend that it was not until mediation on August 20, 2018, that plaintiff Karina Valle for the very first time claimed that due to this accident, she has revived previous phobias and anxiety that stem from an alleged sexual assault when she was 13 years old.

Defendants move to compel a psychological examination based on the above representations made by Plaintiff Karina Valle. Defendants acknowledge that plaintiff Karina Valle currently lives in Colorado. Defendants agree to advance the reasonable expense and costs to the examinees for their travel to the place of examination in California.

In opposition, Plaintiff Karina Valle argues that a psychological examination is improper at this stage. Plaintiff Karina Valle contends that in her discovery responses, specifically, form interrogatory No. 6.3 served on defense counsel, plaintiff Karina Valle stated that she “still suffers from psychological trauma resulting from the incident and is fearful any time she rides in a car.” (Pl. Opp. Ex. 1.) Plaintiff Karina Valle also contends that form interrogatory No. 6.4 also provided that she was attending a counseling facility. (Pl. Opp. Ex. 1.) Plaintiff Karina Valle further explains that at the time of the accident she was living in Diamond Bar California. (P. Opp. Ex. 2.) Plaintiff Karina Valle contends that these discovery responses placed Defendants on notice of her emotional injuries.

Plaintiff Karina Valle contends that on July 9, 2018, she moved to Colorado. (Id.) Plaintiff Karina Valle argues that on August 18, 2018, Defendants for the first time inquired about setting up a date for a psychological examination, which is over one and a half months after she moved out of state. Plaintiff Karina Valle contends that because Defendants were aware of her injuries, Defendants should have requested a psychological examination earlier while Plaintiff Karina Valle lived in California.

Plaintiff Karina Valle also argues that she fears that if she is forced to attend a deposition in California, she will be fired from her current job. The basis of this argument is that when she visited California to attend a private mediation on August 20, 2018, she was fired from her then current job. She contends that she has since acquired a new job and fears being fired if she is forced to take time off work. Plaintiff Karina Valle additionally argues that a deposition more than 75 miles from Plaintiff Karina Valle’s residence is improper, and that Defendants should be forced to conduct the examination in Colorado.

In reply, Defendants contend that while Defendants were aware, through discovery, that plaintiff Karina Valle was making claims related to psychological issues concerning the fear of driving, Defendants were unaware of Plaintiff Karina Valle’s psychological issues stemming from sexual assault that she had suffered when she was a child. Defendants contend that they did not learn of such claims until mediation which occurred on August 20, 2018. Based on Plaintiff Karina Valle’s discovery responses, Defendants did not believe that a psychological examination was required. Defendants further contend that it is unclear why Plaintiff Karina Valle lost her last job for attending a one-day mediation and thus any hardship she claims as a result of missing work is unsupported. Defendants also contend that because they are willing to advance reasonable expenses for plaintiff Karina Valle’s travel expenses, a deposition over 75 miles from Plaintiff Karina Valle’s residence is proper.

The Court finds that Defendants have shown sufficient good cause to compel the psychological examination. Defendants have specified the manner, conditions, nature, and scope of the examination, as required by CCP §2032.220 as follows: Dr. Delis will perform various tests including: the Minnesota Multiphasic Personality Inventory – 2, Wechsler IQ Selective Subtests, Wechsler Memory Scale-4 Selective Subtests, Wide Range Achievement Test-4 Selective Tests, Boston Naming Test or NAB Naming Test, California Verbal Learning Test – II, Cognitive validity measures, Wisconsin Card Sorting Test, Delis-Kaplan Executive Function System Selective Subtests, Finger Tapping Tests, Minnesota Multiphasic Personality Invetory-2 or Beck Depression and Anxiety Inventories and Clinical Interview. The notice also provides that the assessment will take place at 1016 2nd Street, Encinitas, CA 92024 with Dr. Dean Delis, a licensed clinical psychologist and that the assessment will last approximately four hours. (Def. Mot. Ex. B.)

Defendants contend that it was not until mediation on August 20, 2018, that plaintiff Karina Valle for the very first time claimed that due to this accident, she has revived previous phobias and anxiety stemming from an alleged sexual assault when she was 13 years old. Plaintiff Karina Valle does not contest the fact that as a result of the subject car accident, she is suffering from phobias and anxiety stemming from sexual assault she suffered when she was 13 years old. Rather, Plaintiff Karina Valle contends that Defendants should have requested such an examination earlier because Defendants have been on notice of Plaintiff’s claims from her discovery responses.

The Court finds Plaintiff Karina Valle’s argument unpersuasive. Notably, while the discovery responses that Plaintiff Karina Valle cites — form interrogatories 6.3 and 6.4 — disclose that she was suffering from psychological trauma resulting from the incident and that she is fearful any time she rides in a car, nothing in these discovery responses show that the trauma from which she was suffering was connected to any sexual assault that dates back to when she was 13 years old. Thus, Defendants were not reasonably on notice that such claims may be pursued by Plaintiff Karina Valle prior to the parties’ mediation on August 20, 2018.

Accordingly, the Court finds good cause to allow Defendants to have their own psychologist examine Plaintiff. Plaintiff Karina Valle’s main argument in opposition is that she fears that she will be fired if she is forced to take time off from work. The Court is unconvinced by this argument as well. Plaintiff Karina Valle has failed to put forth evidence showing that she was fired from her previous job because she attended mediation on August 20, 2018. Furthermore, Plaintiff Karina Valle fails to put forth evidence to show that she is in danger of being fired if she takes one day off to attend a psychological examination.

Regarding the issue that Plaintiff Karina will be required to travel over 75 miles from her current residence if the deposition takes place at the office of Dr. Delis as Defendants wish.

CCP section 2032.320(e) states that “[i]f the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:

(1) The court determines that there is good cause for the travel involved.

(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.

Here, based on the evidence presented, the Court finds that good cause exists for Plaintiff to travel to the place designated by Defendants. Furthermore, Defendants have agreed to advance the reasonable expense and costs to the Plaintiff Karina Valle for her travel to the place of examination in California. Plaintiff Karina Valle fails to put forth sufficient evidence to refute the good cause that Defendants have demonstrated. Thus, the two requirements of CCP section 2032.320(e) are met. While the Court recognizes certain obstacles that people may have in traveling out of state, here, Plaintiff Karina Valle chose to bring this action in California and subsequently moved out of state. Thus, the Court finds that good cause exists to have the psychological examination take place over 75 miles from Plaintiff Karina Valle’s current residence.

Thus, the Court grants Defendants’ motion.

CONCLUSION AND ORDER

Defendants’ motion to compel the psychological examination of Plaintiff Karina Valle by Dr. Delis is granted.

The examination will take place at 1016 2nd Street, Encinitas, CA 92024 with Dr. Dean Delis on a date and time to be noticed by Defendants within 60 days. To minimize the potential for any adverse employment consequences to Plaintiff, Defendants must provide at least 21 days notice prior to the examination. The examination shall consist of the following:

· the Minnesota Multiphasic Personality Inventory – 2.

· Wechsler IQ Selective Subtests,

· Wechsler Memory Scale-4 Selective Subtests,

· Wide Range Achievement Test-4 Selective Tests,

· Boston Naming Test or NAB Naming Test,

· California Verbal Learning Test – II,

· Cognitive validity measures,

· Wisconsin Card Sorting Test,

· Delis-Kaplan Executive Function System Selective Subtests,

· Finger Tapping Tests,

· Minnesota Multiphasic Personality Invetory-2 or Beck Depression and Anxiety Inventories and,

· Clinical Interview.

Defendants are ordered to provide notice of this order and file proof of service of such.

DATED: November 28, 2018

___________________________

Elaine Lu
Judge of the Superior Court

[1] Any further statutory references are to the Code of Civil Procedure.