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Court of Appeal, Second District, Division 5, California.

Richard Vernon ALLBRIGHT, II, Petitioner, v. SUPERIOR COURT of the State of California For the County of Los Angeles, Respondent. Samuel Albert STAPLES, Real Party in Interest.

No. B032717.

Decided: March 23, 1988

Michael L. Luboviski, A.P.C., Glendora, Silver, McWilliams, Stolpman, Mandel & Katzman and Donna Silver, Wilmington, for petitioner. No appearance for respondent. Mommaerts & Rutledge, Los Angeles, Nancy D. Barlow and Law Offices of John M. Gantus, Glendale, for real party in interest.


In this original proceeding, we hold that a plaintiff in a personal injury action, whose mental condition is not otherwise “in controversy,” may not be compelled to submit to “vocational testing” examination to assist the defense in assessing plaintiff's claim for loss of earnings.1


Petitioner alleges that on March 29, 1985, he was riding his motorcycle along 15th Street in Lancaster when real party turned in front of him and struck the side of the motorcycle.   Petitioner was thrown off his motorcycle and propelled approximately 75 feet, landing on a sidewalk and fracturing his left leg in several places.   Unfortunately, petitioner had a series of complications which required five surgeries on his leg.   An examination by a defense doctor confirmed that petitioner has permanent injuries and will require continuing treatment, including more surgery.   Petitioner suffers “constant mild to severe pain in the left knee and left ankle.” and walks with a cane.   Before the accident, petitioner was earning over $12.00 per hour and working 8–hour days.   He has not been able to work since the accident, and values his future loss of earnings and earning capacity at $512,960.

Pursuant to an ex parte order shortening time,2 real party moved the respondent court for an “Order to Compel Mental Testing of Plaintiff.” requiring petitioner to submit to “vocational testing” by Dr. Maloney, a psychologist, to “determine the nature and extent of the plaintiff's disabilities in regard to the issue of loss of earning capacity.”   The superior court ordered that real party was entitled to have petitioner examined “for purposes of vocational assessment and testing only,” and that the parties were precluded from further discovery except for “discovery consisting of interrogatories and/or a deposition, solely relating to Dr. Maloney's qualifications, examination, testing and/or opinions regarding the plaintiff.”


 A mental examination of a party claiming damages for personal injuries may not be ordered, except on a showing of exceptional circumstances, unless the party's mental condition is “in controversy.”   The party's mental condition is not “in controversy” if he stipulates that (1) he is not seeking damages for mental and emotional distress over and above that usually associated with the physical injuries, and (2) he will not offer expert testimony at trial to support such claims.  (Code Civ.Proc., § 2032, subd. (d);  DeMeo, California Deposition and Discovery Practice, (Matthew Bender 1987), § 62.04[4][e];  Weil & Brown, Cal. Practice Guide—Civ. Pro. Before Trial (Rutter Group 1988), ¶ 8:1567.)   In other words, a plaintiff claiming only physical injury cannot be forced to submit to a mental examination.   (Roberts v. Superior Court (1973) 9 Cal.3d 330, 107 Cal.Rptr. 309, 508 P.2d 309;  Weil & Brown, supra, ¶ 8:1554.)

 This is a garden-variety personal injury case where the plaintiff's claim for loss of earnings stems solely from his physical injuries.   Real party may defend this claim by presenting the expert testimony of a qualified medical doctor.   Petitioner's mental state is not “in controversy” here because (1) he has offered to make the stipulation required by Code of Civil Procedure section 2032, (2) real party concedes that the purpose of the proposed “mental vocational testing” is to assess the extent of petitioner's physical injuries in order to evaluate his claim for loss of future earnings, and (3) real party has made no showing of “exceptional circumstances” (e.g., unusual psychiatric or emotional problems) to justify the intrusion upon petitioner's privacy which a mental examination would entail.   That being the case, the respondent court abused its discretion in granting real party's motion that petitioner undergo “vocational testing.”

Let a peremptory writ of mandate issue directing the respondent court to vacate its order of February 10, 1988, granting real party's “Motion for Order to Compel Mental Testing of Plaintiff Richard Allbright,” and enter a new and different order denying the motion.

Costs are awarded to petitioner.

This opinion is made final forthwith as to this court.


1.   Petitioner's counsel has informed the court that the matter has settled, rendering the petition technically moot, but urges us to render a decision because of the importance of the issue raised.   We agree that the issue requires resolution by an appellate court, and we therefore exercise our discretion to render our opinion in this case despite its mootness.   (Daly v. Superior Court (1977) 19 Cal.3d 132, 141, 137 Cal.Rptr. 14, 560 P.2d 1193.)

2.   The order shortening time was required because, due to the court's congested calendar, a regularly noticed motion could not have been heard until the second week in March, less than one week before trial and long after the thirty-day discovery cutoff.

ASHBY, Acting Presiding Justice.

BOREN and HASTINGS *, JJ., concur.

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