motion for an independent mental and neuropsychological examination
SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 2, Honorable Amber Rosen, Presiding Audrey Nakamoto, Courtroom Clerk
191 North First Street, San Jose, CA 95113 Telephone 408.882-2120
PROBATE LAW AND MOTION TENTATIVE RULINGS DATE: July 23, 2026 TIME: 10:00 A.M.
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LINE # CASE # CASE TITLE RULING LINE 1 24PR198048 The Fazzio Family Trust Click or scroll to line 1 for tentative ruling. Court will issue the final order. LINE 2 25PR201603 Conservatorship of Gilbert Click or scroll to line 2 for tentative ruling. Court Marosi will issue the final order. LINE 3
Calendar line 2 Case Name: Conservatorship of Gilbert Marosi Case No.: 25PR201603
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I.
Introduction
This case arises from Rich Marosi’s (“Petitioner”) petition for appointment as conservator of the estate of his father Gilbert Marosi (“Objector”). On April 24, 2026, Petitioner filed an amended petition seeking a conservatorship of both the person and the estate of Objector. Objector, who is represented by appointed counsel, opposes the conservatorship.
Currently before the court is Petitioner’s motion for an independent mental and neuropsychological examination of Objector under Code of Civil Procedure section 2032.320.1 Objector filed an opposition and Petitioner filed a reply. II.
Discussion
A. Legal Background As explained in Conservatorship of G.H. (2014) 227 Cal.App.4th 1435, 1440-1441, the Civil Discovery Act provides for a mental examination of a party: “Section 2032.020 provides that any party ‘may obtain discovery ... by means of a physical or mental examination ... in any action in which the mental or physical condition ... is in controversy in the action.’ (§ 2032.020, subd. (a).) Section 2032.310, subdivision (a) specifies that ‘the party shall obtain leave of court’ to obtain discovery by means of a mental examination.
Section 2032.310, subdivision (b) provides that a ‘motion for an examination under subdivision (a) shall 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.’ [¶] Section 2032.320, subdivision (a) states: ‘The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.’ Section 2032.320, subdivision (d) provides: ‘An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.’” (Conservatorship of G.H. (2014) 227 Cal.App.4th 1435, 1440-1441.) “The foregoing statutory provisions establish that a party must submit to mental examination only upon court order.” (Id. at p. 1441.)
If the court grants the motion, the order must specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (§ 2032.320, subd. (d).) B. Merits of the Motion Petitioner asserts that Objector’s mental functioning is central to the issue raised in the petition, namely, whether a conservator should be appointed because Objector cannot manage his own affairs. The petition requires a capacity declaration (Judicial Council form GC-335) and Petitioner contends that an examination of Objector is required to complete that form.
He seeks a mental and neuropsychological examination of Objector by Dr. Eric Freitag, Psy.D. FACPN, a psychologist and board-certified neuropsychologist. Petitioner has provided Dr. Freitag’s curriculum vitae, which establishes that Dr. Freitag meets the requirement that the
1 All further undesignated statutory references are to the Code of Civil Procedure.
exam must be conducted “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.” (§ 2032.020, subd. (c)(1); Declaration of David Brillant in Support of Motion, Ex. A.)
Petitioner requests that the examination occur at Dr, Freitag’s clinic, the Mt. Diablo Memory Center, 1910 Olympic Boulevard, Suite 220, Walnut Creek, California 94596 on date set by Dr. Freitag after entry of the court’s order. He requests that the total testing time not exceed four hours, with reasonable breaks, and that Dr. Freitag may pause the examination and resume it in another session if necessary. The following tests and procedures shall be conducted: a clinical interview of Objector; a mental status examination of Objector; and the Montreal Cognitive Assessment (MoCA) and Dr. Freitag may conduct other non-invasive testing if clinically indicated. Dr. Freitag will conduct the examination alone with Objector unless the parties stipulate otherwise.
Objector makes no objection to the method or manner of testing requested by Objector. He contends that he was already examined by Dr. Megha Pokhriyal of the Kaiser Santa Clara Clinic on June 2, 2026 and she determined that he does not have dementia. He argues that he is in good health and lives completely independently without assistance.
Objector has provided a letter from Dr. Pokhriyal in which she states that she is a licensed psychologist and that based on her assessment on June 2, 2026, “Gilbert Marosi does NOT have a diagnosis of dementia (major neurocognitive disorder). The Memory Clinic can only determine lack of capacity in patients with dementia.” As Petitioner argues, the letter from Dr. Pokhriyal is insufficient to establish that Objector has capacity such that a mental examination is not needed. The statement that the Memory Clinic can only determine lack of capacity in patients with dementia suggests that, although Dr.
Pokhriyal believes that Objector does not have dementia, he may still suffer from lack of capacity from a different underlying cause. Moreover, as Petitioner points out, Dr. Pokhriyal does not indicate that she reviewed Objector’s medical records, nor does she indicate what tests were conducted. Dr. Pokhriyal’s background is unknown and she did not provide all of the information needed to complete the declaration of capacity form.
Finally, although Objector contends that he is in good health and lives independently, and opposes the conservatorship entirely, Petitioner has provided the court with confidential information that suggests that a conservatorship may be necessary.2 III.
Conclusion
The motion is GRANTED. The court will sign the proposed order provided by Petitioner.
2 In an effort to protect Objector’s privacy, the court will not discuss the confidential information contained in the record in this order. However, the court notes that Petitioner filed a confidential supplemental information form on April 24, 2026.