This case was last updated from Los Angeles County Superior Courts on 07/11/2021 at 02:59:13 (UTC).

WADENYA AMENYA VS ANGELUS FUNERAL HOME ET AL

Case Summary

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 TERESA A. BEAUDET, HOLLY E. KENDIG and DAVID J. COWAN. The case status is Disposed - Dismissed.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6486

  • Filing Date:

    09/19/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

TERESA A. BEAUDET

HOLLY E. KENDIG

DAVID J. COWAN

 

Party Details

Plaintiff

AMENYA WADENYA

Defendants

NELSON EDWIN E.

ANGELUS FUNERAL HOME

MCCONNELL BLANCHE

TODD DAVENPORT

Attorney/Law Firm Details

Plaintiff Attorney

KENT CLAYTON W.

Defendant Attorney

ONYEMAOBIM OBIORA IKEDI

 

Court Documents

Request for Dismissal

7/2/2021: Request for Dismissal

Notice - NOTICE OF ENTRY OF ORDER

6/8/2021: Notice - NOTICE OF ENTRY OF ORDER

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER - REGARDING ADVANCING AND VACATING OF HEARING DATES:) OF 06/09/2021

6/9/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER - REGARDING ADVANCING AND VACATING OF HEARING DATES:) OF 06/09/2021

Minute Order - MINUTE ORDER (COURT ORDER - REGARDING ADVANCING AND VACATING OF HEARING DATES:)

6/9/2021: Minute Order - MINUTE ORDER (COURT ORDER - REGARDING ADVANCING AND VACATING OF HEARING DATES:)

Notice - NOTICE OF TAKING DEFENDANT ANGELUS FUNERAL HOMES MOTION TO CONTINUE TRIAL AND RELATED CUT-OFF DATES OFF CALENDAR

6/10/2021: Notice - NOTICE OF TAKING DEFENDANT ANGELUS FUNERAL HOMES MOTION TO CONTINUE TRIAL AND RELATED CUT-OFF DATES OFF CALENDAR

Notice of Settlement

6/15/2021: Notice of Settlement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 06/22/2021

6/22/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 06/22/2021

Minute Order - MINUTE ORDER (COURT ORDER)

6/22/2021: Minute Order - MINUTE ORDER (COURT ORDER)

Separate Statement - SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL PLAINTIFF WADENYA AMENYAS FURTHER RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET FOUR, AND REQUEST FOR MONETARY SANCTIONS

6/2/2021: Separate Statement - SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL PLAINTIFF WADENYA AMENYAS FURTHER RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET FOUR, AND REQUEST FOR MONETARY SANCTIONS

Informal Discovery Conference

5/27/2021: Informal Discovery Conference

Separate Statement

5/27/2021: Separate Statement

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL)

5/27/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL)

Order - ORDER [PROPOSED] ORDER RE: DEFENDANT ANGELUS FUNERAL HOMES EX PARTE APPLICATION

5/21/2021: Order - ORDER [PROPOSED] ORDER RE: DEFENDANT ANGELUS FUNERAL HOMES EX PARTE APPLICATION

Opposition - OPPOSITION DECLARATION OF CLAYTON W. KENT, ESQ. IN SUPPORT OF OPPOSITION TO APPLICATION DEFENDANT'S EX PARTE TO CONTINUE TRIAL AND RELATED CUT-OFF DATES. OR, IN THE ALTERNATIVE, FOR AN OR

5/26/2021: Opposition - OPPOSITION DECLARATION OF CLAYTON W. KENT, ESQ. IN SUPPORT OF OPPOSITION TO APPLICATION DEFENDANT'S EX PARTE TO CONTINUE TRIAL AND RELATED CUT-OFF DATES. OR, IN THE ALTERNATIVE, FOR AN OR

Motion to Compel Further Discovery Responses

5/27/2021: Motion to Compel Further Discovery Responses

Motion to Continue Trial Date

5/27/2021: Motion to Continue Trial Date

Motion to Compel Further Discovery Responses

5/27/2021: Motion to Compel Further Discovery Responses

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL

5/21/2021: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL

91 More Documents Available

 

Docket Entries

  • 07/02/2021
  • DocketRequest for Dismissal; Filed by WADENYA AMENYA (Plaintiff); TERRENCE AMENYA (Plaintiff); ANGELUS FUNERAL HOME (Defendant) et al.

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  • 06/30/2021
  • Docketat 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 06/22/2021
  • Docketat 2:00 PM in Department 50, Teresa A. Beaudet, Presiding; Court Order

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  • 06/22/2021
  • DocketCertificate of Mailing for ((Court Order) of 06/22/2021); Filed by Clerk

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  • 06/22/2021
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 06/21/2021
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion to Continue Trial - Not Held - Advanced and Vacated

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  • 06/18/2021
  • Docketat 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 06/15/2021
  • DocketNotice of Settlement; Filed by WADENYA AMENYA (Plaintiff); TERRENCE AMENYA (Plaintiff)

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  • 06/11/2021
  • Docketat 4:00 PM in Department 50, Teresa A. Beaudet, Presiding; Non-Appearance Case Review (re lodge trial readiness and exhibit binders) - Not Held - Advanced and Vacated

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  • 06/10/2021
  • DocketNotice (OF TAKING DEFENDANT ANGELUS FUNERAL HOMES MOTION TO CONTINUE TRIAL AND RELATED CUT-OFF DATES OFF CALENDAR); Filed by ANGELUS FUNERAL HOME (Defendant)

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128 More Docket Entries
  • 02/16/2018
  • DocketDeclaration; Filed by DAVENPORT TODD (Defendant)

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  • 02/16/2018
  • DocketReceipt; Filed by DAVENPORT TODD (Defendant)

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  • 02/16/2018
  • DocketCIVIL DEPOSIT

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  • 11/28/2017
  • DocketSummons; Filed by Clerk

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  • 11/28/2017
  • DocketSUMMONS

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  • 11/28/2017
  • DocketSummons Issued; Filed by Clerk

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  • 11/20/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 11/20/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 09/19/2017
  • DocketCOMPLAINT FOR DAMAGES

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  • 09/19/2017
  • DocketComplaint; Filed by WADENYA AMENYA (Plaintiff)

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Tentative Rulings

Case Number: ****6486    Hearing Date: April 13, 2021    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

wadenya amenya, et al.,

Plaintiffs,

vs.

angelus funeral home, et al.

Defendants.

Case No.:

****6486

Hearing Date:

April 13, 2021

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

DEFENDANT ANGELUS FUNERAL HOME’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Background

This is a breach of contract, misrepresentation, and negligent infliction of emotional distress case arising out of the mishandling of the remains of Decedent Uzoma Ibeogu (“Decedent”).

Plaintiffs Wadenya Amenya (“Wadenya”) and Terrence Amenya (“Terrence”), 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 (“Davenport”), Blanche McConnell (“McConnell”), and Edwin E. Nelson (“Nelson”). The Complaint asserts seven causes of action for: (1) breach of contract; (2) negligence; (3) breach of the covenant of good faith and fair dealing; (4) negligent infliction of emotional distress; (5) negligence per se; (6) intentional misrepresentation; and (7) negligent misrepresentation.

Plaintiffs allege that Wadenya is Decedent’s surviving spouse and Terrence is Decedent’s son. (Compl., ¶¶ 1-2.) After Decedent 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. (Id., ¶¶ 10-11.) The Decedent’s body was in Angelus’s custody on or shortly after April 24, 2016. (Id., ¶ 11.) However, it was not until August 22, 2016 that the Decedent was embalmed. (Id., ¶ 17.) At that point, the Decedent had third-stage decomposition, skin slip, and mold, which was horrifying and shocking to Plaintiffs. (Id., ¶¶ 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. (Id., ¶ 19.)

Angelus now moves for summary judgment or in the alternative summary adjudication on Plaintiffs’ complaint.

Plaintiffs oppose and Angelus filed a reply.

Evidence

Only Plaintiffs filed evidentiary objections.

Though Angelus does comment in its reply that Plaintiffs do not present admissible evidence in support of certain arguments (see Reply 2:13-17, 19-25), Angelus did not file any specific evidentiary objections. Therefore, this argument appears to focus on whether Plaintiffs sufficiently rebut a shifted burden with the evidence presented, and not whether the evidence presented has admissibility issues.

The Court rules on Plaintiffs’ evidentiary objections as follows:

No. 1 (regarding Peterson Ex. 16): sustained

No. 2 (regarding Peterson Ex. 17): sustained

No. 3 (regarding Peterson Ex. 18): sustained

No. 4 (regarding Peterson Ex. 19): sustained

No. 5 (regarding Peterson Ex. 20): sustained

No. 6 (regarding Peterson Ex. 22): sustained

In sustaining the evidentiary objections, the Court notes that Angelus’ counsel in unable to provide the appropriate foundation or authentication for records produced during discovery or otherwise obtained during litigation. It is not enough that counsel may be familiar with the records during the litigation. Additionally, Exhibit 22 as filed is blank, i.e., there is only a cover page. There is no record for the Court to examine.

Request for Judicial Notice

The Court grants Plaintiffs’ unopposed request for judicial notice of the Application and Declaration for Order (Domestic Violence Prevention) filed by “Mart Ibeogu” under LASC Case No. BQ000248. “Mart Ibeogu” is another name for Decedent. (See e.g., Wadenya Decl. ¶ 6 [“During the period of time that I knew and was married to Uzoma Ibeogu, he used several different names, including Martin Uzoma Ibeogu, Mart Ibeogu, Uzo Ibeogu, and Martin Ibeogu.”].),

The document is a record of court of California. ((Evid. Code, ; 452(d).)

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., ; 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., ; 437c(p)(2).)

Discussion

  1. Because of Procedural Defects, the Court Treats the Motion as One for Summary Judgment Only

Angelus’ motion violates California Rules of Court, rule 3.1350.

First, Angelus’ notice of motion violates California Rules of Court, rule 3.1350.

California Rules of Court, rule 3.1350(b) requires a notice of motion for summary adjudication to identify each specific cause of action and claims for damages for which summary adjudication is sought.

Here, Angelus’ notice of motion does not identify that it seeks summary adjudication of any specific issues. Presumably, the motion seeks summary adjudication of issues corresponding to the causes of action, but Plaintiffs do not have proper notice of that. (See, Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498 [“Any gain in efficiency the court might make by adjudicating subissues not targeted by the motion is outweighed by the unfairness to the defending party who has not been properly notified of the danger of such a ruling.”].)

Second, Angelus’ separate statement violates California Rules of Court, rule 3.1350.

Code of Civil Procedure section 437c, subdivisions (b)(1) and (f)(2) require a motion for summary judgment and adjudication to include a separate statement of material facts. “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Code Civ. Proc., ; 437c(b)(1).)

California Rules of Court, rule 3.1350(d) requires a motion for summary judgment and adjudication to have a separate statement that separately identifies each cause of action that is the subject of the motion and each supporting material fact claimed to be without dispute. “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court., rule 3.1350(b).) This separate statement for summary adjudication also must follow a specific format of identifying the issues in a heading before discussing the material facts. (Id., rule 3.1350(g).)

Here, Angelus’ separate statement includes identified issues that are not stated verbatim in the notice of motion. This violates the rules set forth above.

Because of these procedural issues, the Court exercises its discretionary authority to only consider Angelus’ motion as one for summary judgment, not one for summary adjudication in the alternative. (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 [“[T]he court’s power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory.”].)

Accordingly, the Court treats this motion only as a motion for summary judgment. And as a motion for summary judgment, Angelus must ultimately prevail on each cause of action. Otherwise, the Court cannot grant summary judgment. As set forth below, the Court concludes that it does not and denies summary judgment.[1]

  1. Merits

Angelus argues that Plaintiffs’ first cause of action for breach of contract fails because there is no written contract between Plaintiffs and Defendant and Terrence cannot separately make this claim.

To state a claim for breach of contract, a plaintiff must allege sufficient facts to establish: (1) a contract between the parties; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff from the breach. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Angelus first contends that there was no written contract or agreement between Angelus and Plaintiffs. Angelus specifically cites Undisputed Material Facts (“UMF”) Nos. 4-5. The supporting evidence of these facts come from Davenport’s deposition (Peterson Decl., ¶ 5, Ex. 4) and Angelus’ funeral home records (id. Ex. 16). Davenport specifically testified that Angelus did not have a contract to perform funeral-related services on Decedent and did not attempt to get a contract from April to July 2016. Regarding the Angelus’ funeral home records, the Court has sustained the evidentiary objection to this material. Even if it had not, it is unclear what specific document from the over 20 pages of records Angelus wants the Court to identify as the evidentiary support to show the nonexistence of a contract. Nevertheless, Plaintiffs produce some of these records to show the exact opposite. More specifically, Plaintiffs show that there was a (1) three-page document itemizing the services to be performed on Decedent and embalming is selected (Kent Decl., ¶ 25, Ex. T); and (2) a document entitled “Authorization to Accept or Decline Embalming” directing Angelus to embalm Decedent and this form was signed by Wadenya and McConnel (id. at ¶ 17, Ex. L). In light of these records, there is at least a triable issue of material fact whether there was a contract between Angelus and Wadenya.

Angelus’ arguments in reply are not persuasive. (See reply 3:18-4:3.) The “Authorization of Embalming” form is more than just an authorization form. When read in conjunction with the three-page itemization of services, it provides further confirmation that Angelus is to provide the services of embalming to Decedent. It does not need to be any more specific than that to set forth Angelus’ contractual obligations. Whether Wadenya signed the document merely as Decedent’s friend does not otherwise vitiate her standing for the agreement. Additionally, Angelus fails to show that Wadenya is not Decedent’s surviving spouse because the purported supporting evidence is inadmissible. (Motion 12:16-13:2.) Even if that evidence were admissible, Plaintiffs have submitted sufficient evidence to show a triable issue of fact. (Wadenya Decl. ¶¶ 7, 12, Ex. A-B.) The Court additionally notes that Angelus’ challenge to this evidence in reply (see Reply 4:24-5:7) only goes to the weight and not admissibility because Angelus did not file proper evidentiary objections. And given that the Court must construe all evidence in Plaintiffs’ favor as the nonmoving party, the Court finds Plaintiffs’ evidence sufficient.

Accordingly, the Court must deny the motion for summary judgment as to Wadenya’s claims in the Complaint because at least the breach of contract claim survives.

Angelus makes additional arguments regarding the breach of contract claim made by Terrence, specifically that “(1) he was not a party to a written agreement, (2) he was a minor in April 2016, and (3) he testified during his deposition that he had no communications with Angelus Funeral Home staff and personnel regarding the handling of decedent’s remains.” (Motion 14:20-23.) Angelus does not support these arguments with any specific legal authority. In any event, the Court rejects them. There is sufficient evidence to show that Terrence is Decedent’s son and Angelus was aware of that. (Kent Decl. Ex. R [listing Wadenya as “son’s mother”]; Kent Decl. Ex. K 60:1-10 [Davenport testifying that “[McConnell] got information that [Decedent] had a minor son at the time and that was the only relative he had.”].) This establishes that Terrence is a third-party beneficiary of the contract. (See Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 212-213 [plausible third-party beneficiary theory for pet owners when veterinarian contracted with cremation company for private cremation of pet].) Terrence’s minor status does not otherwise affect his role as a third-party beneficiary. Additionally, it is immaterial whether Terrence had communications on how Angelus should handle Decedent’s remains. The evidence shows that Angelus knew of his existence and were obligated to honor its obligations to provide funeral services including embalming as directed by another person (here Wadenya) regardless of whether Terrence actively was involved.

In making this ruling, the Court finds that Angelus’ arguments regarding Terrence’s lack of father-son relationship unpersuasive because there is at least a triable issue of material fact. Notably, Plaintiffs proffer evidence (RJN Ex. A) whereby Decedent admitted a paternal relationship to Terrence. Terrence also has testified that Decedent is his father. (Kent Decl. Ex. N at p. 15:1-3.)

Accordingly, the Court must deny the motion for summary judgment as to Terrence’s claims in the Complaint because at least the breach of contract claim survives.

Conclusion

Based on the foregoing, Angelus’ motion for summary judgment is denied. Angelus’ motion for summary adjudication in the alternative is denied.

Plaintiffs are ordered to provide notice of this ruling.

DATED: April 13, 2021 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] The Court also notes that Angelus did not comply with the Courtroom Instructions with regard to lodging compilations of all the moving, opposing and reply papers in connection with the motion for summary judgment. In contrast, Plaintiffs lodged spiral compilations of all of the papers they filed. Normally, this deficiency would have been enough to reject the motion; however, the Court has exercised its discretion to consider the motion without the requisite compilations from Angeles.



Case Number: ****6486    Hearing Date: January 22, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

wadenya amenya, et al.,

Plaintiffs,

vs.

angelus funeral home, et al.

Defendants.

Case No.:

BC 676486

Hearing Date:

January 22, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS’ MOTION FOR LEAVE TO OBTAIN MENTAL EXAMINATION OF PLAINTIFFS WADENYA AMENYA AND TERRENCE AMENYA

Background

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.

Discussion

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.

Conclusion

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



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