Case Number: BC607036 Hearing Date: October 19, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Wayne Quach,

Plaintiff,

v.

Kevork George Keurjikian, et al.,

Defendants.

Case No.: BC607036

Hearing Date: October 19, 2018

[TENTATIVE] order RE:

DEFENDANT’S motion to Compel Neuropsychological EXAMINATION of PLAINTIFF

Background

On August 6, 2018, Defendant Kevork George Keurjikian (“Defendant”) filed the instant motion to compel Plaintiff Wayne Quach (“Plaintiff”) to submit to neuropsychological examination. Plaintiff opposes the motion. The Court has not received a reply from Defendant.

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

Defendant asks this Court to order that Plaintiff be subject to a mental examination. Defendant contends that a mental examination is necessary in this case because Plaintiff has placed his mental condition in issue for this suit. In the complaint, Plaintiff alleges that he suffered “severe . . . emotional and mental injuries” as well as “psychological trauma” as a result of the incident giving rise to this case. (Compl., p. 5.) Plaintiff also claims that he “will in the future require medical care and treatment, and incur . . . therapy expenses” as a result of the incident. (Ibid.)

In the opposition, Plaintiff does not dispute that his mental condition is in issue. However, Plaintiff argues that the motion should be denied for several procedural defects: (1) Defendant failed to request an available date for examination, (2) Defendant failed to list the tests sought to be administered, and (3) Defendant failed to establish good cause. The Court notes that the first ground, failing to allege a date, is not sufficient grounds to deny this motion. The Court also finds that Defendant has sufficiently listed the tests to be performed in the Fourth Amended Notice of Examination attached in Exhibit B of the motion. The parties attempted to agree to an examination without Court intervention, and Defendant listed all 48 of the proposed tests in the Fourth Amended Notice. As the most recent notice of examination is attached to the motion, and the notice lists the requested tests, the Court finds that Defendant has included a sufficient list of the examinations proposed to be performed.

The Court finds that Plaintiff’s allegations in the complaint do tend to put Plaintiff’s mental condition in issue, and thus a mental examination is warranted in this case. However, as Plaintiff points out in the opposition, Defendant has not provided sufficient information regarding the tests and procedures to be performed in order to grant this motion at this time. The Court must have sufficient information regarding the tests and their use in order to determine whether the tests are proper. The Court must “weigh[ ] the risks of unwarranted intrusion upon the plaintiff against the defendant’s need for a meaningful opportunity to test the plaintiff’s claims of . . . mental injury.” (Carpenter supra, p. 261.) Defendant has failed to include a declaration from the proposed doctor showing why the 48 requested tests are relevant to the litigation and to Plaintiff’s claims for damages.

Accordingly, the Court continues this motion to allow Defendant an opportunity to file a supplemental declaration from Dr. Johnny Wen to explain why the 48 tests requested are being sought and to show the relevance of the tests to the litigation. This motion is CONTINUED to November 5, 2018 at 1:30 pm. Defendant must file and serve the supplemental declaration no later than October 22, 2018, with a courtesy copy delivered directly to this department on the same day of filing. Plaintiff may file and serve a supplemental opposition based on Dr. Wen’s declaration no later than October 29, 2018, with a courtesy copy delivered directly to this department on the same day of filing.

If the parties are able to resolve these issues, then the moving party must promptly cancel the reservation on the Court’s online reservation system (CRS) no less than 48 hours before the hearing. Failure to cancel the hearing after that time will result in the Court assuming the motion will move forward, and the Court will issue a ruling on the merits of the motion. If the parties resolve this issue by stipulation, then the parties must file notice of the stipulation prior to the new time set for hearing and provide a courtesy copy directly to the department.

Conclusion and Order

Defendant’s motion to compel Plaintiff to submit to neuropsychological examination is CONTINUED to November 5, 2018 at 1:30 pm in this department.

Defendant must file and serve the supplemental declaration no later than October 22, 2018, with a courtesy copy delivered directly to this department on the same day of filing.

Plaintiff may file and serve a supplemental opposition in response to Dr. Wen’s declaration no later than October 29, 2018, with a courtesy copy delivered directly to this department on the same day of filing.

The Court Clerk is ordered to provide both parties with notice of this order.

DATED: October 19, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

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