Case Number: BC628415 Hearing Date: November 27, 2018 Dept: M

CASE NAME: Robert Gene Frings v. Kathleen Fox Spiegelman

CASE NUMBER: BC628415

COMPLAINT FILED: 7/26/2016

HEARING DATE: 11/27/2018

TRIAL DATE: N/A

NOTICE: OK

MOTION: Plaintiff Robert Gene Frings’ Motion for a Protective Order to Quash Defendant’s Amended Notice for Neuropsychiatric Examination of Plaintiff /Defendant’s Motion to Compel Mental Examination

HELD: DENIED

TENTATIVE RULING

Background

Plaintiff underwent a six-hour mental examination by a doctor selected by Defendant on November 28, 2017. On April 25, 2018 Defendant served on Plaintiff’s Counsel a Notice of Neuropsychiatric Examination of Plaintiff seeking further examination by the same doctor. Plaintiff objected to this notice, alleging that it breached the parties’ prior agreement that Plaintiff would submit to a single mental examination lasting no more than six hours. On May 3, 2018, Defendant served an “Amended Notice of Neuropsychiatric Examination of Plaintiff,” which is the subject of the instant motion.

Plaintiff moves to quash the Amended Notice on the grounds that it violates the parties’ agreement and is procedurally defective. Defendant moves to compel Plaintiff to attend its noticed Neuropsychiatric Examination.

Merits

A party seeking an order compelling another party to submit to a mental examination must establish that good cause for the examination exists. (Carpenter v. Superior Court of Alameda (2006) 141 Cal.App.4th 249, 259.) Additionally, the party seeking to compel such an examination must list by name the diagnostic tests and procedures that will be used. (Id. at 260)

Plaintiff first seeks to quash Defendants’ Amended Notice on the grounds that it does not identify the tests and procedures that will be used. (Motion for Protective Order at pgs. 10:4-11:4.) Exhibit A to the Amended notice, however, clearly lists “the MMPI-2 or MMPI-2-RF, Personality Assessment Inventory (PAI), Mini-Mental State Examination (MMSE), and the Trauma Sympton Inventory – 2 (TSI-2)” as the full range of tests that might be employed during Plaintiff’s examination. (Plaintiff’s Ex. 8, Ex. A thereto.) This argument therefore fails.

Plaintiff also objects to Defendant’s Amended Notice on the grounds that the parties had already agreed on strictly limited terms for any examination, one of which limited the total time for testing to six hours. (Motion for Protective Order at 11:10-13:6.) Plaintiff supports this claim with a sworn declaration stating that the parties agreed that Plaintiff would submit to a single mental examination that would extend for no more than six hours. (Shtofman Declaration at ¶5.)

In Opposition, however, Defendant submits the declaration of Ari Kalechstein, PhD, which states that the November 28, 2017 examination was never actually completed, and that, excluding breaks, Plaintiff spent approximately four hours participating in the evaluation. (Kalechstein Dec. I at ¶ 9.) Thus, under the terms of the agreement outlined above, Defendant is entitled to approximately two more hours of examination.

Finally, Plaintiff argues that Defendant has not established good cause for further examination, since Plaintiff was already examined on November 28, 2017. (Motion at pgs. 11:22-12:4.) However, the Kalechstein Declaration states that the November examination was not actually completed, and that further examination is required in order to produce a full evaluation of Plaintiff’s mental health. (Kalechstein I Dec. at ¶¶10-13.) Good cause has therefore been shown.

Plaintiff’s Motion for Protective Order and Sanctions is DENIED. Defendant’s Motion to Compel Mental Examination is GRANTED, subject to the following limitations:

Excluding breaks, the examination will not exceed 2 hours in length of actual testing time

The tests given during the examination will be confined to those identified in the Amended Notice.