On 10/24/2016 SOO JA CHUNG filed a Personal Injury - Other Personal Injury lawsuit against L A COUNTY METROPOLITAN TRANSPORTATION AUTHO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
CHUNG SOO JA
DOES 1 TO 60
LOS ANGELES COUNTY METROPOLITAN TRANSPOR-
LAW OFFICES OF BRIAN W. TOPPILA
KIM JASON JOHN
WAINFELD GABRIEL HORACE
2/14/2018: ORDER AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES]
2/23/2018: NOTICE OF CONTINUANCE OF TRIAL
6/26/2018: NOTICE OF CONTINUANCE OF TRIAL
8/14/2018: DEFENDANT'S EX PARTE APPLICATION TO CONTINUE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GABRIEL H. WAINFELD
8/16/2018: NOTICE OF RULING
1/8/2019: Ex Parte Application
1/10/2019: Minute Order
3/18/2019: Substitution of Attorney
4/9/2019: Association of Attorney
4/11/2019: Minute Order
4/11/2019: Ex Parte Application
4/16/2019: Notice of Ruling
10/24/2016: COMPLAINT FOR DAMAGES 1. NEGLIGENCE OF GOVERNMENT EMPLOYEE/PUBLIC ENTITY - MOTOR VEHICLE; ETC
3/8/2017: PROOF OF SERVICE OF SUMMONS
10/11/2017: CIVIL DEPOSIT
at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Notice of Ruling; Filed by Los Angeles County Metropolitan Transpor- (Defendant)Read MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Hearing on Ex Parte Application (to Continue Trial) - Held - Motion GrantedRead MoreRead Less
at 12:48 PM in Department 3, Jon R. Takasugi, Presiding; Nunc Pro Tunc OrderRead MoreRead Less
Minute Order ((Nunc Pro Tunc Order Re Minute Order of 4/11/19) (to change times of Trial and FSC); Filed by ClerkRead MoreRead Less
Ex Parte Application (to Continue Trial); Filed by Los Angeles County Metropolitan Transpor- (Defendant)Read MoreRead Less
Order (Re Trial Continuance); Filed by Los Angeles County Metropolitan Transpor- (Defendant)Read MoreRead Less
Minute Order ( (Hearing on Ex Parte Application to Continue Trial)); Filed by ClerkRead MoreRead Less
Association of Attorney; Filed by Soo Ja Chung (Plaintiff)Read MoreRead Less
Substitution of Attorney; Filed by Soo Ja Chung (Plaintiff)Read MoreRead Less
Miscellaneous-Other; Filed by Soo Ja Chung (Plaintiff)Read MoreRead Less
Minute order entered: 2017-09-22 00:00:00; Filed by ClerkRead MoreRead Less
INFORMAL DISCOVERY CONFERENCE FORM FOR PERSONAL INJURY COURTS (DEPARTMENT 91, 92, 93, 97, 98)Read MoreRead Less
Answer; Filed by Los Angeles County Metropolitan Transpor- (Defendant)Read MoreRead Less
ANSWER TO COMPLAINTRead MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Soo Ja Chung (Plaintiff)Read MoreRead Less
Complaint; Filed by Soo Ja Chung (Plaintiff)Read MoreRead Less
COMPLAINT FOR DAMAGES 1. NEGLIGENCE OF GOVERNMENT EMPLOYEE/PUBLIC ENTITY - MOTOR VEHICLE; ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC638379 Hearing Date: August 27, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
SOO JA CHUNG,
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, ET AL.,
CASE NO: BC638379
[TENTATIVE] (1) ORDER GRANTING MOTION FOR LEAVE TO AMEND
(2) ORDER GRANTING DEFENSE MENTAL EXAMINATION OF PLAINTIFF
August 27, 2020
Plaintiff, Soo Ja Chung filed this action against Defendant, Los Angeles County Metropolitan Transportation Authority for damages Plaintiff sustained while a passenger on Defendant’s bus. Plaintiff alleges Defendant’s driver negligently and carelessly accelerated the bus immediately after Plaintiff boarded Defendant’s bus.
Defendant now moves (1) for leave to amend its answer and (2) to compel the defense mental examination of Plaintiff.
Motion for Leave to Amend Answer
Defendant moves for leave to amend its answer to include an affirmative defense of a breach of oral agreement.
The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (CCP §§ 473 and 576.) Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. However, the court does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)
The application for leave to amend should be made as soon as the need to amend is discovered. The closer the trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has the discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)
Here, Defendant seeks leave to amend its answer to include an affirmative defense of breach of oral agreement based on Plaintiff’s alleged oral agreement to settle this matter. Defendant asserts Plaintiff will not be prejudiced by allowing the proposed amendment, and that denying the motion will deprive Defendant of a meritorious defense. Plaintiff does not oppose the motion. Trial in this matter is not currently set, and thus, there will be no prejudice as a result of the amended answer.
The motion is granted.
Motion to Compel the Defense Mental Examination of the Plaintiff
Defendant moves to compel Plaintiff to submit to a neuro psych defense medical examination on the ground that Plaintiff recently produced records from Dr. Daniel Zehler for a neuropsychological examination, which is the first time Defendant was provided with records by a neuropsychologist. Defendant seeks to have its expert, Dr. Ari Kalechstein, to conduct a neuropsychological examination of Plaintiff, so that Defendant is not prejudiced when Plaintiff has Dr. Zehler testify at trial.
Plaintiff argues that since the incident she has had significant cognitive issues, including loss of memory, difficulty with speech, disorientation, dizziness and trouble with balancing, such that a lengthy and invasive mental examination will cause detriment to Plaintiff’s mental condition. Before a mental examination is ordered, Plaintiff’s treating doctor should opine that an examination will not be detrimental to her health. Further, Plaintiff contends Defendant’s motion does not comply with CCP § 2032.310.
Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP §2032.320(a).)
The examination will be limited to whatever condition is “in controversy” in the action. (CCP §2032.020(a).) This means the examination must be directly related to the specific injury or condition that is the subject of the litigation. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.) Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.) Discovery responses can also frame the issues regarding the injuries and damages alleged.
Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of the plaintiff. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)
Here, Plaintiff affirms that she is alleging she has suffered significant cognitive issues. While Plaintiff asserts she will suffer long term detriment to her mental condition, Plaintiff does not submit any evidence to show that a mental examination as proposed by Defendant would be harmful to her health. The court thus finds good cause for the mental examination sought.
Plaintiff further contends failed to satisfy the requirements of CCP §2032.320(d), which requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.” Defendant’s motion indicates the scope of the examination is set forth in the exhibits attached to the Declaration of Counsel, filed concurrently with the moving papers. Counsel’s declaration references a description of the neuropsychological evaluation to be performed by Dr. Kalechstein, (Exh. E), a list of the tests to be administered during the examination by Dr. Kalechstein (Exh. F). Exhibit F lists 22 potential tests; “The tests are considered to be valid and reliable measures of cognition and emotion, and will assess the following domains: intellectual function, attention/information processing speed, language/academic achievement, visuospatial skills, motoric function, memory for auditory and/or visual information, executive/frontal function, and/or personality/emotional functioning, Attached is a universe of the tests [Exh. F] that may he administered to the plaintiff. The specific tests to be administered will be determined once records have been reviewed and the testing has commenced.” (Exh. E.)
Plaintiff cites to Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, in arguing that Defendant has failed to specify the tests and procedures to be conducted.
In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260, the defendant argued that simply naming the types of tests to be performed, as opposed to the exact tests themselves, was sufficient in the context of a mental health examination. The court of appeals disagreed and noted that the statute required the defendant to specify the “diagnostic tests and procedures,” which means they must be listed by name.
The Court indicated, “Nor does the discussion in Ragge otherwise persuade us that it would be inappropriate to compel advance disclosure of the test names. Yamaha refers us to a passage in which the Ragge court stated: ‘Because the mental examination provides one of the few opportunities for a defendant to have access to a plaintiff, and the only opportunity for a defendant to have a plaintiff examined by defendant's expert, some preference should be given to allowing the examiner to exercise discretion in the manner and means by which the examination is conducted, provided it is not an improper examination.’ (Ragge, supra, 165 F.R.D. at p. 609.) In general, we have no quarrel with this proposition. Certainly, the examiner should have some discretion in choosing the manner and means of conducting the examination—but only as long as the tests he or she proposes are not unduly invasive or otherwise inappropriate. The way to assure that the tests do not make the examination “improper,” as Ragge puts it, is to require the court to name the tests in its order. This assures that the court has considered any objections to the tests and provides the examiner clear parameters for the examination.”
Defendant, in this case, identifies 22 potential tests for the neurological examination, which is sufficiently narrow to permit Plaintiff to prepare for the examination. The court therefore finds Defendant has met its obligations in this regard.
Defendant’s motion to compel Plaintiff to attend and neurophysiological examination with Drs. Ari Kalechstein. 11835 W. Olympic Blvd., Suite 1265E, LA, CA 90064. Counsel must meet and confer to determine the date and time for the examination; if Plaintiff does not meaningfully participate in the meet and confer process, Defendants may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff (extended per Code if by other than personal service).
Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.
Dated this 27th day of August, 2020
Hon. Thomas D. Long
Judge of the Superior Court
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