Motion for leave to file a fourth amended complaint; motion regarding vexatious litigant orders
August 7, 2026, Civil Law & Motion Tentative Rulings
1. CL0001259 Thomas Deal v. Fred Gerkensmeyer, et al.
Plaintiff’s April 15, 2026, motion for leave to file a fourth amended complaint, and April 14, 2026, motion regarding vexatious litigant orders, are removed from calendar without prejudice. Plaintiff has failed to file any proof of service of the motion regarding vexatious litigant orders on the defense. Plaintiff has also failed to file an adequate proof of service establishing when and how the motion for leave to file an amended complaint was served on the defense and demonstrating that service was timely.
See 7/23/26 Proof of Service. Pursuant to Code of Civil Procedure section 1005(b), Plaintiff was required to file and serve a notice of motion and motion at least sixteen court days before the hearing. Moreover, the period of notice is extended by additional days depending on the method of service. See, e.g., Code Civ. Proc. §§ 1005, 1010.6(a)(3), 1013(a). Any future motions shall be filed and served in compliance with all the requirements of the Rules of Civil Procedure.
2. CU0001927 Steven Fischer vs. McKenzie Fisher, et al
Defendants’ motion to compel attendance at neuropsychological independent medical examination (IME) by Plaintiff is granted, in part, subject to conditions set forth herein.
“[A] trial court is not required to order the production of test materials or test data [in connection with a physical or mental examination]. [G]iven the trial court's broad discretion in discovery matters, it retains the discretion to order the production of such materials.” Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 838, citing Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 261 and Roe v. Superior Court (2015) 243 Cal.App.4th 138, 147
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At bar, Defendants have shown, and Plaintiff does not dispute, a legitimate need for the examination. The parties mainly contest whether Defendants shall be obligated to provide neurological data and materials to Plaintiff’s counsel. Plaintiff has shown a legitimate need for the raw data. The Court is not persuaded by Defendants’ arguments to the contrary. “Without the raw data and audio recording, plaintiff[] cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist's opinion.”
Randy's Trucking, Inc., 91 Cal. App. 5th at 838. Moreover, “disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.” Ibid. Such audiotaping will also ensure the examiner does not overstep bounds set by the court, provide the context of responses for purposes of trial, protect the examinee’s interests since the examinee’s counsel is usually not present, and assure any evidence of abuse can be presented to the court. Ibid. “Without plaintiff[’s] access to the audiotape and raw data, plaintiff[] cannot adequately protect these interests.”
Ibid. Plaintiff’s proposed protective order adequately addresses any confidentiality concerns and test security concerns of Defendants. In the exercise of its discretion, the Court orders production of the raw data to Plaintiff’s counsel subject to a protective order. The parties are ordered to meet and confer within five days of this order to finalize a date for the neurophysiological IME.
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