Case Number: BC416182??? Hearing Date: April 27, 2016??? Dept: 31
Defendant?s Motion for Order for an Independent Mental Examination of Plaintiff is GRANTED.
Thomas correctly argues that the motion was not timely served. The motion was personally served only 15 court days prior to the hearing date. Thomas requests the Court not to consider the untimely motion. ?It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.? Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930. Plaintiff filed a substantive opposition which pursuant to Tate may be construed as a waiver of defective service. Given the filing of the opposition, the court cannot ascertain any prejudice visited upon defendant as a result of the City?s failure to comply with well-known service requirements. As a result, The Court exercise its discretion to consider the motion despite the failure to comply with the notice requirements of CCP ? 1005(b) given Thomas? opposition on the merits.
In Opposition, Thomas argues that Defendant has not been diligent in seeking the IME at issue. Thomas argues that he designated psychiatrists and psychologists that he planned to call as witnesses in 2013. (Shegerian Decl. ? 4.) Despite the passage of time and several trial continuances, Defendant filed the instant motion on April 6, 2016. Notably, as argued in reply, Thomas revised the operative complaint by filing the Fourth Amended Complaint on May 15, 2014 and the Court ruled that the entire Fourth Amended Complaint will be tried in one trial in its May 21, 2015 order. The date initially set for trial was June 28, 2010. In Reply, Defendant notes that the Court?s February 10, 2016 minute order continuing trial to May 31, 2016 stated ?all statutory dates are continued accordingly,? which Defendant construes as including the discovery cut-off. The motion seeks to compel the mental examination to take plaace on May 6, 2016, which is beyond the cut-off to complete discovery regardless of whether the Court?s February 10, 2016 order continued discovery. CCP ? 2024.020(a).
While Defendants did not properly move the Court pursuant to CCP ? 2024.050 to extend the discovery cut-off for the IME requested, the parties have addressed the issue of diligence in their opposition and reply. Thus, the Court has sufficient facts to determine whether the IME should take place beyond the discovery cut-off. Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588 (noting trial court must determine whether, under all relevant circumstances, discovery should be reopened for the purpose sought). Pursuant to CCP ? 2024.050, the court shall take into account:
(1) The necessity and the reasons for the discovery.
(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.
(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.
(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.
The Court finds that the IME is necessary to enable defendant to present evidence on Thomas? mental condition and rebut his evidence regarding his alleged severe emotional distress. The parties do not dispute that Thomas? mental state is directly at issue in this case. Defendant will be severely prejudiced by an inability to present evidence on Thomas? mental condition. There is no evidence that the IME will prevent trial from going forward. Despite the lack of diligence in seeking a motion to compel an IME and the large amount of time that has elapsed in this matter, the Court finds the prejudice to Defendant and the necessity for the IME to outweigh Defendant?s lack of diligence. ?[T]he discovery statutes must be construed liberally in favor of disclosure.? Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107. Taking into account the factors of CCP ? 2024.050(b), the Court shall permit the motion and IME to proceed beyond the discovery cut-off.
In Opposition, Thomas cites Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, and Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 570 to argue that good cause for the examination must be supported by the affidavit of a medical professional. However, these cases dealt with the very specific scenario where a party sought to as questions about past sexual conduct as a source of emotional distress. There is no evidence here that the standard psychological tests proposed by Defendant would encompass Thomas? sexual history. These cases are inapplicable here.
The Court shall grant the motion only for good cause shown. CCP ? 2032.320(a). Good cause exists in this case because Thomas has clearly put his mental and emotional well-being at issue in this matter. The Fourth Amended Complaint seeks emotional distress damages and Thomas attested to emotional distress and treatment by medical professionals for his emotional distress. (Lyon Decl. ? 2.) Here, as in Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-40, good cause exists for a mental examination: ?In the case at bar, plaintiff haled defendants into court and accused them of causing her various mental and emotional ailments. Defendants deny her charges. As a result, the existence and extent of her mental injuries is indubitably in dispute.? ?Plaintiff’s present mental and emotional condition is directly relevant to her claim and essential to a fair resolution of her suit; she has waived her right to privacy in this respect by alleging continuing mental ailments.? Id. at 842.
CCP ? 2032.320(d) mandates that ?[a]n order granting a physical or mental examination shall 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.? That court orders that the psychiatric evaluation be conducted by by Dr. James R. Rosenberg on May 6, 2016 at 11:00 a.m. at his office located at 21900 Burbank Blvd., Third Floor, Woodland Hills, CA 91367. The court further orders that the physiological testing may include the following tests:
(1) MMPI-2;
(2) MMPI-2-RF-;
(3) Personality Assessment Inventory (PAI);
(4) Mini-Mental State Examination (MMSE); and
(5) Trauma Symptom Inventory-2 (TSI-2)
Based on the foregoing, the motion is GRANTED. Moving party is ordered to give notice.