MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 07/22/2026 Hearing on Motion - Other to Vacate Order Compelling IME [CCP 473(B)], [CCP 473(D)] in Department 8D

reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

*** EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G STREET IN SACRAMENTO, CA 95814. ALL HEARINGS NOTICED FOR DEPARTMENT 25 WILL BE HEARD IN DEPARTMENT 8D OF THE NEW COURTHOUSE. ***

TENTATIVE RULING:

Plaintiff in pro per Barbara McIntyre’s (“Plaintiff”) motion to vacate order compelling independent medical exam (“IME”) is ruled on as follows.

This action arises from Plaintiff Barbara McIntyre’s claims of workplace discrimination, harassment, and retaliation.

The Court provides a summary of the procedural history relating to this motion to provide sufficient context.

On June 3, 2026, Defendant Universal Protection Service, LP (“Defendant”) moved for an order compelling Plaintiff’s IME. The hearing on this motion was set for December 16, 2026. The operative complaint at that time was the Second Amended Complaint (“SAC”). In the SAC, Plaintiff alleged that she suffered “mental and emotional distress, fear, humiliation, anxiety, embarrassment, sleeplessness, constipation, and bladder infections” as a result of Defendant’s conduct. (SAC ¶ 107.) Plaintiff also alleged Defendant’s knowledge of her “pre-existing vulnerability to feeling anxious about unsafe work conditions” because of the violent death of her husband. (SAC ¶ 32.)

On June 8, 2026, Defendant gave Plaintiff notice via email that it “will move ex parte on Thursday, June 11, 2025 [sic] for an order shortening time, or in the alternative,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 07/22/2026 Hearing on Motion - Other to Vacate Order Compelling IME [CCP 473(B)], [CCP 473(D)] in Department 8D

advancing the hearing date and compressing the briefing schedule” for its motion to compel IME. (McIntyre Decl., Exh. B, p. 1; see Exh. D to Ex Parte Application, filed 6/10/2026.)

Plaintiff filed a Third Amended Complaint (“TAC”) on June 9, 2026. In the TAC, Plaintiff prays, among other things, for damages “[f]or past, current, and future medical and emotional distress treatment costs, according to proof, including specialized treatment for consequential injuries caused by the vestibular and vagus nerve symptoms and fraudulent delay in treatment, and the infliction of the injuries shrouded in spoilation [sic] of evidence.” (TAC at p. 34:10–13.)

On June 10, 2026, Defendant filed and served its ex parte application, captioned “Order Shortening Time or, in the Alternative for an Order Advancing the Hearing Date and Compressing the Briefing Schedule.” However, contrary to the request set forth in the caption and the notice provided to Plaintiff, the notice of ex parte application requested that the Court rule on Defendant’s pending motion on the papers or at an ex parte hearing; or, in the alternative, advance the hearing date and compress the briefing schedule. (Not. of Ex Parte App., at p. 1:5–10.)

Defendant stated that its examining doctor was available on June 24 and June 26, 2026 to evaluate Plaintiff but that Defendant’s motion “has been pending for weeks with a hearing date more than six months away.” (MPA on Ex Parte App., at p. 1:8–9.) Defendant contended that “this delay is untenable.” (Ibid.) Plaintiff filed a declaration and notice of late service of Defendant’s ex parte application.

On June 11, 2026, this Court (Judge Hardcastle) granted Defendant’s underlying motion to compel IME, utilizing a provision of Defendant’s proposed Order:

[T]he Court rules on the Motion to Compel on the papers submitted and grants the motion in its entirety. Plaintiff is ordered to appear for the IME with Dr. John M. Greene on June 24, 2026, June 26, 2026, or the next mutually agreeable date Dr. Greene is available.

(June 11, 2026 Order Granting Ex Parte Application [“June 11 Order”].)

On June 15, 2026, Plaintiff filed the instant motion to vacate the June 11 Order pursuant to Code of Civil Procedure section 473, subdivision (b) or (d). Plaintiff’s notice of motion states as one of her grounds that the Order was granted without due process. (Not. of Mot, p. 1.) Plaintiff simultaneously filed an ex parte application to shorten time to hear

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 07/22/2026 Hearing on Motion - Other to Vacate Order Compelling IME [CCP 473(B)], [CCP 473(D)] in Department 8D

her motion. Defendant opposed Plaintiff’s ex parte application, arguing as one of its points that the June 11 Order “was granted after a properly noticed motion on which Plaintiff had the opportunity to oppose.” (Opp. to ex parte app., at p. 2:22–23.)

On June 17, 2026, this Court (Judge Perkins) granted Plaintiff’s ex parte application and stayed the June 11 Order.

The Court deems the application to be in substance an application to advance the hearing date on those motions. The Court grants the request to advance the hearing date on those motions and sets them for hearing on July 22, 2026 at 1:30 pm in this department. Briefing to be done on the schedule normally required for civil motions. The Court also stays the order of June 11, 2026 compelling the IME until at least the end of the day on July 22, 2026. However, the IME is allowed to proceed sooner if the parties so stipulate.

The Court further orders Plaintiff to meet and confer in good faith with counsel for defendant Universal about these motions and also about Universal’s underlying request for an IME. Plaintiff is specifically ordered to confer in good faith about both the substance of Universal’s request for an IME and Universal’s offer of a stipulation pursuant to Code of Civil Procedure section 2032.320(c).

Finally, counsel for defendant Universal is requested to explain at the July 17 hearing the facts supporting the statement at page 2, lines 22-23 of its opposition filed June 16, 2026.

(June 17, 2026 Order on Ex Parte Proceedings.)

The instant hearing is now on the merits of Plaintiff’s motion to vacate the June 11, 2026. Defendant opposes the motion.

Code of Civil Procedure section 473, subdivision (d), allows the court, upon motion and after notice, to set aside any void judgment or order. Here, the Court finds adequate grounds to vacate the June 11 Order as void.

First, Defendant’s ex parte application was procedurally deficient. Defendant’s June 8 email notice of ex parte application stated that it sought “an order shortening time, or in

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 07/22/2026 Hearing on Motion - Other to Vacate Order Compelling IME [CCP 473(B)], [CCP 473(D)] in Department 8D

the alternative, advancing the hearing date and compressing the briefing schedule.” A notice of motion must state “the grounds upon which it will be made.” (Code Civ. Proc., § 1010; Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207.) A court generally may not grant a party relief different from that stated in the notice of motion. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 726.) Defendant did not indicate in this email that it would ask the Court to grant its underlying substantive motion. Thus, Defendant’s email of June 8 did not give Plaintiff notice that the order to compel might be granted ex parte.

Plaintiff first had notice that Defendant sought a ruling on the substantive motion when Defendant served its moving papers on Plaintiff. This occurred by email at 10:45 a.m. on June 10, one day before the ex parte hearing. (McIntyre Decl., Exh. B, p. 3.) “A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance.” (Cal. Rules of Court, rule 3.1203(a).) Defendant’s email of June 10 was late and also failed to give proper notice to Plaintiff. Accordingly, Defendant’s request that the Court compel Plaintiff’s IME was procedurally improper and should not have been submitted to the Court. Indeed, Plaintiff objected to the late notice.[1] Accordingly, the June 11 Order is void and must be vacated.

Even had Defendant given proper notice, the Court would still find that the June 11 Order is void and must be vacated. “A court will not grant ex parte relief ‘in any but the plainest and most certain of cases.’” (People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257.) “[I]n an adversary proceeding where an order may affect the rights of an adverse party, notice must be given to protect the adverse party’s right to be heard on the issue as a matter of due process of law.” (St. Paul Fire & Marine Ins.

Co. v. Super. Ct. (1984) 156 Cal.App.3d 82, 85.) Notice of any motion must generally be provided according to Code of Civil Procedure section 1005. (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at p. 207.) Although a court can shorten the statutory time periods on ex parte application, a court may not grant a motion ex parte “if the statute or rule requires notice.” (Ibid.) The use of the term “motion,” rather than “ex parte application,” imposes the notice and hearing requirements generally applicable to motions. (St.

Paul Fire & Marine, supra, at p. 86.)

A party may obtain discovery by mental examination only by leave of court. (Code Civ. Proc., § 2032.310, subd. (a).) The party must seek leave by “motion” and must serve “notice of the motion” on all parties who have appeared in the action. (Id. § 2032.310., subds. (b), (c) [“(b) 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 07/22/2026 Hearing on Motion - Other to Vacate Order Compelling IME [CCP 473(B)], [CCP 473(D)] in Department 8D

identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”] (emphasis added).) The statutory term “motion,” instead of the phrase “ex parte application,” indicates that an order compelling mental examination may not be granted ex parte. Defendant’s request for relief in this manner was improper.

In opposition, Defendant argues that in fact it is Plaintiff’s motion that is “vague and ambiguous” and does not give Defendant proper notice. (Opp., at pp. 6:27–7:11.) The Court disagrees. Defendant’s opposition intelligently responded to Plaintiff’s motion on the grounds stated, Code of Civil Procedure section 473, and addresses other possible grounds. Moreover, the procedural stance between Plaintiff’s motion and Defendant’s conduct is profoundly different. Defendant sought by ex parte application an order compelling a mental examination of another party, an order that any reasonable person would agree affects the substantive rights of a party. Here, Plaintiff moves by properly noticed motion to vacate the result of Defendant’s improper procedure.

When an order has “been entered without proper notice and opportunity to be heard,” it must be annulled in its entirety. (St. Paul Fire & Marine Ins. Co. v. Super. Ct., supra, 156 Cal.App.3d at p. 85.) Plaintiff was denied proper notice and opportunity to be heard. Accordingly, the Court vacates the June 11 Order as void.

The Court’s register of actions shows that Defendant’s motion to compel IME remains set for December 16, 2026.

The Court need not address most of the other contentions raised between the parties on this motion, including whether Plaintiff’s filing of the TAC mooted any discovery. However, the Court reiterates that Plaintiff and Defendant must continue to confer in good faith about discovery issues. A failure to do so by the moving party may result in summary denial of a party’s motion. (In re Marriage of Moore (2024) 102 Cal.App.5th 1275, 1296.)

On June 17 the Court ordered “Plaintiff to meet and confer in good faith with counsel for defendant Universal about these motions and also about Universal’s underlying request for an IME. Plaintiff is specifically ordered to confer in good faith about both the substance of Universal’s request for an IME and Universal’s offer of a stipulation pursuant to Code of Civil Procedure section 2032.320(c).” Defendant declares that the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 07/22/2026 Hearing on Motion - Other to Vacate Order Compelling IME [CCP 473(B)], [CCP 473(D)] in Department 8D

parties have exchanged written correspondence related to these topics but that Plaintiff “has never provided any availability for a meet and confer telephone call.” (Shelest Decl. ¶¶ 19–25.)

Plaintiff filed a late supplemental declaration on July 16, 2026, which corroborates Defendant’s statements and shows Plaintiff dispatching questions and contentions via email without any effort to negotiate her position. This is not the good faith attempt to resolve the issue demanded by the Civil Discovery Act. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) Indeed the Court reminds the Parties that Code of Civil Procedure section 2016.040(a) provides:

A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt, either in person, by telephone, or by videoconference, to informally resolve each issue presented by the motion.

(emphasis added.) Based on the information before the Court, the Court finds that Plaintiff failed to comply with the Court’s June 17 Order.

But to the extent the Court’s June 17 Order was not clear, a “good faith” effort to meet and confer must be in person, by telephone, or by videoconference. The Court again orders Plaintiff to confer in good faith “about both the substance of Universal’s request for an IME and Universal’s offer of a stipulation pursuant to Code of Civil Procedure section 2032.320(c).” This code section states, in relevant part,

(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.

(b) 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.

(c) A stipulation by a party under this subdivision shall include both of the following:

(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 07/22/2026 Hearing on Motion - Other to Vacate Order Compelling IME [CCP 473(B)], [CCP 473(D)] in Department 8D

injuries claimed.

(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.

“Good cause” in this context means that the moving party shows specific facts justifying the examination 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. Super. Ct. (1987) 43 Cal.3d 833, 840.) The Vinson Court held that

Plaintiff in the case at bar asserts that she continues to suffer diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation, and severe emotional distress. In their motion defendants pointed to these allegations. Because the truth of these claims is relevant to plaintiff's cause of action and justifying facts have been shown with specificity, good cause as to these assertions has been demonstrated. Subject to limitations necessitated by plaintiff's right to privacy, defendants must be allowed to investigate the continued existence and severity of plaintiff's alleged damages.

(Ibid.) On the other hand, the Vinson Court held that Plaintiff’s allegations had not placed her sexual history at issue. (Id. at p. 842.)

The Court quotes these sources in hope that they give the parties a foundation on which to confer on the topic. The Court of course does not rule on the merits of Defendant’s motion to compel an examination at this time, which is currently set to be heard on December 16, 2026.

In the event that Defendant contests this tentative ruling and appears at the hearing, the Court will expect Defendant “to explain at the hearing the facts supporting the statement at page 2, lines 22-23 of its opposition filed June 16, 2026.” The Court notes its serious concerns regarding a representation that the filing of a motion on June 3, 2026 with a noticed hearing date of December 6, 2026 somehow transforms an ex parte application, filed on June 10, 2026 and seeking affirmative relief, into a properly noticed motion. To the extent Defendant asserts that an ex parte application itself is a “properly noticed motion,” Defendant should be prepared to support such an assertion with

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013308: MCINTYRE vs CITY OF SACRAMENTO, A CALIFORNIA CHARTER CITY, et al. 07/22/2026 Hearing on Motion - Other to Vacate Order Compelling IME [CCP 473(B)], [CCP 473(D)] in Department 8D

appropriate authority.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)

[1] The Court does not adopt Plaintiff’s arguments entirely, as Plaintiff appears to

contend that all papers for an ex parte application must be submitted by 10:00 a.m. the court day before the ex parte appearance. (See Plaintiff’s Notice of Late Service.) The Ex Parte Rules are clear: notice of an ex parte application must be given no later than 10:00 a.m. the court day before the appearance. (Cal. Rules of Court, rule 3.1203(a).) However, the actual application and supporting papers need only be served “at the first reasonable opportunity.” (Cal. Rules of Court, rule 3.1206.) Regardless, Defendant did not give timely notice that it sought a ruling on its substantive motion.