On 09/19/2017 WADENYA AMENYA filed a Personal Injury - Other Personal Injury lawsuit against ANGELUS FUNERAL HOME. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, SAMANTHA JESSNER, TERESA A. BEAUDET and HOLLY E. KENDIG. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
TERESA A. BEAUDET
HOLLY E. KENDIG
NELSON EDWIN E.
ANGELUS FUNERAL HOME
DOES 1 TO 10
KENT CLAYTON W.
KJAR MCKENNA & STOCKALPER LLP
ONYEMAOBIM OBIORA IKEDI
7/13/2020: Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION TO CONTINUE TRIAL DATE AND RELATED DATES; [PROPOSED] ORDER
6/23/2020: Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION TO CONTINUE TRIAL DATE AND RELATED DATES
1/6/2020: Proof of Service (not Summons and Complaint)
1/14/2020: Reply - REPLY DEFENDANTS REPLY IN SUPPORT OF MOTION FOR LEAVE TO OBTAIN MENTAL EXAMINATION OF PLAINTIFFS WADENYA AMENYA AND TERRENCE AMENYA
1/22/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO OBTAIN MENTAL EXAMINATION OF P...)
6/24/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)
6/28/2019: Notice of Change of Address or Other Contact Information
6/18/2019: Notice of Ruling
3/20/2019: Minute Order - MINUTE ORDER (COURT ORDER RE REASSIGNMENT TO INDEPENDENT CALENDAR COURT)
2/14/2019: Opposition - Opposition Opposition to Motion to Compel Compliance With Subpoena
2/14/2019: Opposition - Opposition Opposition to Motion to Bifurtcate
2/19/2019: Stipulation and Order - Stipulation and Order TO CONTINUE TRIAL,FSC [AND RELATED MOTION/DISCOVERY DATES] PERSONAL INJURY COURTS ONLY (CENTRAL DISTRICT)
12/10/2018: Notice - Notice Of Lodgment In Support In Support Of Defendants Motion For Summary Judgment
12/31/2018: Proof of Service by Mail
1/25/2019: Motion for Order - Motion for Order NOTICE OF MOTION AND MOTION FOR COURT ORDER COMPELLING COMPLIANCE WITH SUBPOENA DUCES TECUM FOR PRODUCTION OF RECORDS
1/25/2019: Motion to Bifurcate
2/16/2018: ANSWER TO COMPLAINT
Hearing06/30/2021 at 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing06/18/2021 at 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing06/11/2021 at 16:00 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case ReviewRead MoreRead Less
Hearing04/13/2021 at 10:00 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary JudgmentRead MoreRead Less
Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Court's MotionRead MoreRead Less
DocketNotice (OF ENTRY OF ORDER); Filed by ANGELUS FUNERAL HOME (Defendant)Read MoreRead Less
Docketat 4:11 PM in Department 50, Teresa A. Beaudet, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order) of 08/07/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
DocketANSWER TO COMPLAINTRead MoreRead Less
DocketAnswer; Filed by ANGELUS FUNERAL HOME (Defendant); DAVENPORT TODD (Defendant)Read MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketSummons Issued; Filed by ClerkRead MoreRead Less
DocketSummons; Filed by ClerkRead MoreRead Less
DocketApplication ; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVILRead MoreRead Less
DocketComplaint; Filed by WADENYA AMENYA (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGESRead MoreRead Less
Case Number: BC676486 Hearing Date: January 22, 2020 Dept: 50
wadenya amenya, et al.,
angelus funeral home, et al.
January 22, 2020
[TENTATIVE] ORDER RE:
DEFENDANTS’ MOTION FOR LEAVE TO OBTAIN MENTAL EXAMINATION OF PLAINTIFFS WADENYA AMENYA AND TERRENCE AMENYA
Plaintiffs Wadenya Amenya and Terrence Amenya, a minor, by and through his guardian ad litem, Wadenya Amenya (jointly, “Plaintiffs”) filed the instant action on September 19, 2017 against Defendants Angelus Funeral Home (“Angelus”), Todd Davenport, Blance McConnell, and Edwin E. Nelson. The Complaint asserts causes of action for breach of contract, negligence, breach of the covenant of good faith and fair dealing, negligent infliction of emotional distress, negligence per se, intentional misrepresentation, and negligent misrepresentation.
Plaintiffs allege that after decedent Uzoma Ibeogu passed away, Angelus was contracted and entrusted to embalm the decedent and prepare the decedent for viewing and transport to Nigeria for a ceremonial burial in accordance with Nigerian custom. (Compl., ¶¶ 10-11.) The decedent’s body was in Angelus’s custody on or shortly after April 24, 2016. (Compl., ¶ 11.) However, it was not until August 22, 2016 that the decedent was embalmed. (Compl., ¶ 17.) At that point, the decedent had third-stage decomposition, skin slip, and mold, which was horrifying and shocking to Plaintiffs. (Compl., ¶¶ 17, 24.) When the decedent was transported to Nigeria in or about October 2016, the intended ceremonial burial custom was not able to be performed, and Plaintiffs felt humiliation and shame as a result. (Compl., ¶ 19.)
Angelus served a unilateral notice of Plaintiffs’ mental examination on September 20, 2019. (Petersen Decl., ¶ 10, Ex. 6.) Plaintiffs objected, and during meet and confer efforts, counsel for Angelus suggested a stipulation to allow for the mental examination on conditions agreeable to Plaintiffs. (Petersen Decl., ¶ 11, Ex. 7.) As of the filing of the instant motion, Plaintiffs had not agreed to such a stipulation. (Petersen Decl., ¶ 13.)
Angelus now moves for an order compelling Plaintiffs to submit to an independent medical examination (“IME”) to be conducted by David Braff at Regus – Continental Grand, 400 Continental Blvd., 6th Floor, El Segundo, California 90245 within 45 days of the entry of an order granting the instant motion. Plaintiffs oppose.
“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 (including the blood group) of that party or other person is in controversy in the action.” ((Code Civ. Proc., § 2032.020(a).) Absent stipulation, mental examinations require a court order. Such order may be made only after notice and hearing, and “for good cause shown.” ((Code Civ. Proc., § 2032.320(a)); ((Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259 [“To protect the plaintiff’s privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause.”].) A showing of good cause requires that the party “produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” ((Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)
As a threshold matter, the Court notes that the parties disagree as to whether Code of Civil Procedure section 2032.320, subdivision (b) applies such that Angelus’s burden on this motion is to show “exceptional circumstances” rather than just “good cause.”
If a party stipulates that “no claim is being made for mental and 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,” then 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, subds. (b), (c).)
On December 5, 2019, which was after the filing of the instant motion, counsel for Plaintiffs sent an email to counsel for Angelus stating that “my clients are willing to stipulate in accordance with the provisions of CCP §2032.320(b).” (Kent Decl., ¶ 7, Ex. H.) Based on this stipulation, Plaintiffs contend that Angelus has not shown exceptional circumstances for compelling a mental examination of Plaintiffs. Angelus takes the position that Plaintiffs’ stipulation is ineffective without an agreement from Plaintiffs that they will withdraw their cause of action for negligent infliction of emotional distress and without a document signed by Plaintiffs setting forth the terms of the stipulation.
First, the Court notes that there is nothing in section 2032.320 requiring that a stipulation under subdivision (c) be signed by a party himself or herself. Thus, the Court finds that counsel’s written communications constitute an agreement to stipulate pursuant to the terms of subdivision (c). (See Kent Decl., ¶ 7, Ex. H; Kent Decl., ¶ 12, Ex. K [email from counsel for Plaintiffs stating, “I have sent to you, in writing, that my clients stipulate in accordance with [section 2032.320, subdivision (b)], and as their attorney, I am authorized by law to enter into such a stipulation on behalf of my clients”].) Although counsel for Plaintiffs did not use the exact language set forth in subdivision (c), the Court construes his statement that Plaintiffs are stipulating “in accordance with” subdivision (b) to mean that Plaintiffs are stipulating that (1) no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed, and (2) no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.
Second, nothing in section 2032.320 requires that a stipulation pursuant to subdivision (c) requires withdrawal of any causes of action. Granted, in cases where a plaintiff is asserting a cause of action for intentional infliction of emotional distress, which requires a showing that the plaintiff suffered “severe or extreme emotional distress,” a stipulation under section 2032.320, subdivision (c) would logically require withdrawal of the claim. ((See Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832 [setting forth elements of a cause of action for intentional infliction of emotional distress].) But here, there is no cause of action for intentional infliction of emotional distress. To the extent that Plaintiffs assert a cause of action for negligent infliction of emotional distress, “[n]egligent infliction of emotional distress is not an independent tort.” ((Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.) To prevail under a theory of negligent infliction of emotional distress, a plaintiff need only prove the elements for negligence. ((Ibid. .) Therefore, that Plaintiffs refuse to withdraw their “cause of action” for negligent infliction of emotional distress does not impact the validity of their stipulation. It is also worth noting that the specific language of the stipulation is that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.” ((Code Civ. Proc., § 2032.320, subd. (c) [emphasis added].) That suggests that plaintiffs are not expected to completely withdraw all claims for emotional distress, only those claims that are “over and above” the usual emotional distress associated with their claims.
Accordingly, the Court finds that, pursuant to Code of Civil Procedure section 2032.320, subdivision (b), Plaintiffs have established that they have stipulated as provided in subdivision (c), and therefore, Angelus is required to show that exceptional circumstances exist to compel a mental examination of Plaintiffs. The Court finds that Angelus has failed to do so. The only arguments proffered by Angelus relate to whether good cause exists for a mental examination (and specifically, whether Plaintiffs have placed their mental condition in controversy), which is a much lower threshold than exceptional circumstances.
Based on the foregoing, Angelus’s motion to compel is denied.
Plaintiffs are ordered to provide notice of this ruling.
DATED: January 22, 2020 ________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court