On 03/06/2019 GUADALUPE ENCISO filed a Personal Injury - Medical Malpractice lawsuit against AVANTI HOSPITALS, LLC DBA EAST LOS ANGELES DOCTORS HOSPITAL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are STEPHEN I. GOORVITCH and MICHAEL E. WHITAKER. The case status is Pending - Other Pending.
Pending - Other Pending
STEPHEN I. GOORVITCH
MICHAEL E. WHITAKER
AVANTI HOSPITALS LLC DBA EAST LOS ANGELES DOCTORS HOSPITAL
EAST LOS ANGELES DOCTORS HOSPITALS
GIBSON TAJ PRICE
COASTLINE RESOURCES INC.
LEE TINA E.
HAGGERTY WILLIAM CLIFFORD
3/11/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
4/1/2021: Demand for Jury Trial
4/21/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
4/21/2021: Notice of Ruling
5/11/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
12/30/2020: Answer - ANSWER DEFENDANT COASTLINE RESOURCES, INC.S ANSWER TO PLAINTIFES COMPLAINT
9/25/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION TO CONTINUE D'S MSJ AN ORDER...) OF 09/25/2020
9/17/2020: Proof of Service (not Summons and Complaint)
8/21/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; TRIAL SETTING CONFERENCE AND MOTI...)
7/22/2020: Motion in Limine - MOTION IN LIMINE NO. 4 TO PRECLUDE REFERENCE TO THE ABSENCE OF DEFENDANT AT TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES
7/22/2020: Motion in Limine - MOTION IN LIMINE NO. 1 TO PRECLUDE PLAINTIFFS TESTIMONY FOR WANT OF CAPACITY AND COMPETENCY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MOHAN NAIR, M.D.
7/22/2020: Motion in Limine - MOTION IN LIMINE NO. 11 TO PRECLUDE GOLDEN RULE ARGUMENT; MEMORANDUM OF POINTS AND AUTHORITIES
7/22/2020: Request - REQUEST NO. 4 OF DEFENDANT FOR AN ORDER ALLOWING DEFENDANT TO INTRODUCE EVIDENCE OF COLLATERAL SOURCES
7/23/2020: Motion to Bifurcate
7/28/2020: Opposition - OPPOSITION OPPOSITION TO EX PARTE APPLICATION TO CONTINUE MOTION FOR SUMMARY JUDGMENT
8/10/2020: Notice - NOTICE OF CONTINUANCE OF THE CASE MANAGEMENT CONFERENCE AND THE TRIAL SETTING CONFERENCE
4/5/2019: Demand for Jury Trial
Hearing04/19/2022 at 09:30 AM in Department 39 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing04/08/2022 at 09:00 AM in Department 39 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing10/08/2021 at 09:00 AM in Department 39 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary JudgmentRead MoreRead Less
Hearing10/08/2021 at 09:00 AM in Department 39 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status ConferenceRead MoreRead Less
Docketat 09:00 AM in Department 39; Order to Show Cause Re: (Dismissal of Doe Defendants) - Not Held - Vacated by CourtRead MoreRead Less
Docketat 09:00 AM in Department 39; Post-Mediation Status Conference - Not Held - Continued - Court's MotionRead MoreRead Less
Docketat 09:00 AM in Department 39; Hearing on Motion for Summary Judgment - Not Held - Continued - Party's MotionRead MoreRead Less
Docketat 09:00 AM in Department 39; Order to Show Cause Re: (Mediation) - Not Held - Advanced and VacatedRead MoreRead Less
DocketSubstitution of Attorney; Filed by Taj Price Gibson (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 39; Hearing on Ex Parte Application ( to continue hearing) - Held - Motion GrantedRead MoreRead Less
DocketDemand for Jury Trial; Filed by Avanti Hospitals, LLC (Defendant)Read MoreRead Less
DocketDeclaration (of Carmen Vigil Re: Assignment of Trial Attorney); Filed by Avanti Hospitals, LLC (Defendant)Read MoreRead Less
DocketAnswer; Filed by Avanti Hospitals, LLC (Defendant)Read MoreRead Less
DocketNotice of Deposit - Jury; Filed by Avanti Hospitals, LLC (Defendant)Read MoreRead Less
DocketStanding Order re PI Procedures and Hearing Dates; Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ([Standing Order re PI Procedures and Hearing Dates] and Standing Order re PI Procedures and Hearing Dates); Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by Guadalupe Enciso (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Guadalupe Enciso (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by Guadalupe Enciso (Plaintiff)Read MoreRead Less
Case Number: 19STCV07692 Hearing Date: September 28, 2020 Dept: 39
The court DENIES the motion. The court also DENIES Plaintiff’s request for monetary sanctions.
Plaintiff to give notice.
Plaintiff Guadalupe Enciso (“Enciso” or “Plaintiff”) alleges she was a patient of Defendant Avanti Hospitals, LLC, d/b/a East Los Angeles Doctors Hospital, (“Avanti”) and Doe Defendants on or about February 18, 2019. Compl. ¶¶ 8-9. According to Plaintiff, Defendants negligently cared for Plaintiff while she was under the care and control of Defendants, thereby directly and proximately causing her to fall and sustain severe and permanent injuries and damages. Compl. ¶12.
Plaintiff filed her Complaint on March 6, 2019, alleging one cause of action for medical malpractice. On April 23, 2019, Plaintiff named East Los Angeles Doctors Hospitals (“ELADH”) as Doe Defendant 1; on September 8, 2020, Plaintiff named Taj Price Gibson (“Gibson”) as Doe Defendant 2.
Defendant Avanti now moves for an order compelling Plaintiff to appear for a mental examination. Plaintiff opposes the motion.
A courtesy copy of an amended version of Defendants’ motion was submitted to the court on September 15, 2020. These papers were neither timely filed nor served, and the court, therefore, will disregard them. See Code Civ. Proc. § 1005(b); Cal. Rules of Court, rule 3.1300(d).
Meet and Confer
A motion for an examination under Code of Civil Procedure section 2032.310(a) must be accompanied by a meet and confer declaration under section 2016.040. Code Civ. Proc. § 2032.310(b).
A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. Code Civ. Proc. § 2016.040. “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” Clement, 177 Cal. App. 4th 1277, 1294 (2009). “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.” Stewart, 87 Cal. App. 4th 1006, 1016 (2001) (internal ellipses omitted). Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery. Obregon v. Superior Court, 67 Cal. App. 4th 424, 433-34 (1998) (citing Townsend v. Court, 61 Cal. App. 4th 1431, 1437 (1998)).
Defendant Avanti’s attorney, Stephanie Charles (“Charles”), attests she met and conferred with Plaintiff’s counsel on June 22, 2020 regarding a mental examination. Declaration of Stephanie Charles (“Charles Decl.”) ¶ 5. According to Charles, Plaintiff’s counsel has stated he will not produce Plaintiff for a mental examination absent a court order. Id. at ¶ 4. This declaration is sufficient to satisfy the statutory requirement.
Request for Judicial Notice
“A trial court may properly take judicial notice of the records of any court of record of any state of the United States.” Day v. Sharp, 50 Cal. App. 3d 904, 914 (1975). “However, a court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.” Id. (italics in original).
Defendant Avanti requests the court take judicial notice of the Declaration of Mohan Nair, M.D. that was submitted in support of Defendant’s motion for summary judgment/adjudication (“Nair Decl.”). Defendant makes this request pursuant to Evidence Code section 452(c) and (d).
In its motion, Avanti cites the Nair Declaration for the truth of the contents contained therein. Although the court may take judicial notice of the existence and the filing of this declaration, the contents of the declaration do not constitute matter of which the court may take judicial notice. See Day, 50 Cal. App. 3d at 914. The court therefore DENIES the request and will instead treat this declaration in the same manner as any other declaration submitted in support of the motion.
I. Legal Standard
“Any party may obtain discovery … by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition … of that party or other person is in controversy in the action.” Code Civ. Proc. § 2032.020(a). “A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” Id., § 2032.020(c)(1).
To obtain discovery by mental examination, a party must obtain leave of court. Code Civ. Proc., § 2032.310(a). The court shall grant a motion for a mental examination only for good cause shown. Code Civ. Proc. § 2032.320(a). To establish “good cause,” the moving party must produce specific facts justifying the discovery and that the subject matter is relevant to the action. Vinson v. Superior Court, 43 Cal. 3d 833, 840 (1987). One party’s unsubstantiated allegation cannot put the mental state of another in controversy. Id. at 839. “While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.” Id. at 840. If a party stipulates that no claim is being made for mental or emotional distress over and above that usually associated with the physical injuries claimed and that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages, a mental examination may only be ordered on a showing of exceptional circumstances. Code Civ. Proc. § 2032.320(b)-(c).
II. Procedural Considerations
The motion for a mental examination must specify “the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” Id. § 2032.310(b). The party who seeks to compel a mental examination bears the burden to specify the diagnostic tests and procedures to be conducted. Carpenter v. Superior Court, 141 Cal. App. 4th 249, 267 (2006). As the Court of Appeal explained: “Insisting that section 2032.320 means what it says—that the diagnostic tests and procedures must be specified—will result in an orderly and efficient means of balancing the interests of the plaintiff and defendant. The defendant, aware that the court must name the diagnostic tests and procedures in the order granting a mental examination, will identify the potential tests and procedures in its moving papers. The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary.” Id.
The notice of the motion states that the mental examination is to be performed by Dr. Nair and that Nair may need assistance from other appropriate clinicians or assistants in administering psychological tests during the examination. Mot. 2. The notice of the motion further states: “The examination may include non-invasive standard clinical psychological testing of Ms. Enciso to determine intellectual and cognitive functioning, attention, memory, perception, effort, and executive and motor functioning skills. Some of the tests that Dr. Nair may perform include, but are not limited to, MMPI (Minnesota Multiphasic Personality Inventory), MCMI (Million Clinical Multiaxial Inventory), and SIMS (Structured Inventory of Malingered Symptomatology), Beck Anxiety Inventory, Beck Depression Inventory II, Benton Tests, Bilingual Verbal Ability Test, California Verbal Learning Test II, Color Trails Parts 1 & 2, Controlled Oral Word Association Test/Verbal Fluency Test, Dot Counting Test, EOWPVT (Expressive One-Word Picture Vocabulary Test), Figure Drawing Tests, Finger Tapping Tests, Grooved Pegboard, Line Bisection Test, Mini Mental Status Examination, NAB (Neuropsychological Assessment Battery), Narrative Story (Boston Diagnostic Aphasia Examination), Personality Assessment Inventory, Recurrent Series Writing, Rey 15-Word Memory Test, ROWPVT (Receptive One-Word Picture Vocabulary Test), Ruff Figural Fluency Test, Semantic Fluency, Stroop (Golden), TOPF, TOMM, VSVT, WAIS-IV, Wisconsin Card Sorting Test, WMS-IV, Woodcock Johnson III or IV.” Mot. 2-3 (emphasis added).
This non-exhaustive list of 34 possible tests does not specify the tests that are to be performed and instead constitutes a list of “[s]ome of the tests that Dr. Nair may perform.” Mot. 2. As such, Defendant fails to give notice of the actual tests to be performed by Dr. Nair, and the motion is procedurally defective. See Carpenter, 141 Cal. App. 4th at 267. This constitutes grounds to deny the motion.
III. Substantive Analysis
Defendant Avanti moves to compel Plaintiff to submit to a mental examination on the grounds Plaintiff has placed her mental condition into controversy because Plaintiff’s counsel previously represented at her deposition “that Plaintiff will be making a claim that her preexisting mental problems were exacerbated by the incident.” Mot. 9.
In her opposition, Plaintiff states she is willing to stipulate that no claim is being made for mental and emotional distress over and above that usually associated with physical injuries claimed and that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages. Opp. 6; Declaration of Raymond Ghermezian (“Ghermezian Decl.”) ¶ 6. “If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.” Code Civ. Proc. § 2032.320(b). As Plaintiff is willing to stipulate as provided under section 2032.320(c), Defendant Avanti is required to show the existence of exceptional circumstances to establish good cause for a mental examination.
Defendant Avanti argues exceptional circumstances exist because a mental examination is necessary to determine if she is capable of testifying in this action. Mot. 9-10. Defendant points to the declaration of its expert witness, Nair, as evidence that Plaintiff cannot understand the duty of truthful testimony and is incapable of having personal knowledge of past events due to mental illness. Mot. at 9-10.
“A person is disqualified to be a witness if he or she is: (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or (2) Incapable of understanding the duty of a witness to tell the truth.” Evid. Code § 701(a). “[T]he court may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that [she] has such knowledge.” People v. Anderson, 25 Cal. 4th 543, 573 (2001) (emphasis in original). The question of whether a witness is capable of communicating intelligibly or can understand the duty of truthful testimony are questions to be determined by the court. Id. at 574. “A witness challenged for lack of personal knowledge must nonetheless be allowed to testify if there is evidence from which a rational trier of fact could find that the witness accurately perceived and recollected the testimonial events. Once that threshold is passed, it is for the jury to decide whether the witness’s perceptions and recollections are credible.” Id. (emphasis in original).
Defendant Avanti has already submitted the Nair Declaration as evidence that Plaintiff is incapable of understanding the duty of a witness to tell the truth. Nair’s declaration makes clear he believes Plaintiff is incapable of understanding her duty to tell the truth or to perceive and recall events accurately. See Nair Decl. ¶¶ 9, 10. It is, thus, unclear why Avanti needs to have Nair conduct a further examination when he has already submitted opinion testimony on this issue. In short, Avanti does not offer any reasons why a mental examination is now necessary given that its expert witness has already provided sworn medical testimony regarding Plaintiff’s mental condition or why there would be any benefit to requiring Plaintiff to undergo such an examination. As such, Avanti fails to demonstrate that exceptional circumstances exist sufficient to establish good cause for Plaintiff’s mental examination.
The court DENIES Defendant Avanti’s motion.
IV. Plaintiff’s Request for Monetary Sanctions
Plaintiff requests monetary sanctions under Code of Civil Procedure section 2023.010, on the grounds that Defendant Avanti filed the subject motion without substantial justification. Opp. at 9. The court finds that Avanti was substantially justified in bringing the motion and DENIES Plaintiff’s request for monetary sanctions.
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