CREDITORS ADJUSTMENT BUREAU, INC. v. PRO WAY FUMIGATION

looks to Article 2 which is titled "Physical Examination of Personal Injury Plaintiff." (See Code Civ. Proc., Sec. 2032.210, et seq.) Article 3 then covers "physical examination other than that described in Article 2...or...mental examination." (See Code Civ. Proc., Sec. 2032.310, et seq.)

Defendant moves under Code of Civil Procedure section 2032.320, subdivision (a). In the context of Article 2, Code of Civil Procedure section 2032.320, subdivision (b) appears to carve out an exception for personal injury cases in which a mental examination is being sought on top of the physical examination that a personal injury party is entitled to under Code of Civil Procedure section 2032.220. (See, gen., Weil & Brown, Cal. Prac. Guide Civ. Proc. Before Trial (The Rutter Group 2026) P. 8:1567 ["Personal injury plaintiff may avoid mental exam by offering appropriate stipulations:...Where plaintiff claims unusual psychiatric symptoms, a defense mental exam is clearly proper. But where the mental suffering claimed is no different than that generally associated with physical injury, forcing plaintiff to submit to a full-blown psychiatric exam may be pure harassment."].)

Based on the text of the statute, the Court agrees that the inclusion "of a person for whose personal injuries a recovery is being sought" and "mental and emotional distress over and above that usually associated with the physical injuries claimed" show that the Legislature did not intend for Code of Civil Procedure section 2032.320, subdivision (b) to apply to actions where no physical injuries are claimed. Therefore, the standard is good cause.

Here, the Court finds that Plaintiff puts her mental state in controversy. Plaintiff plainly alleges a claim for emotional distress damages in the complaint. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 839 ["a party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy."].)

Further, the Court finds that Defendant establishes good cause for the mental examination. As raised by Defendant in reply, the operative complaint continues to seek past and future emotional distress damages. (Vinson, supra, 43 Cal.3d at p. 847 ["Such examinations may ordinarily be considered only in cases in which the alleged mental or emotional distress is said to be ongoing."].)

Moreover, the Court finds that Defendant meets the procedural requirements by specifying the nature, manner, and physician for the mental examination as well as shows that Plaintiff's mental state is in controversy and that there is good cause to compel a mental examination.

Accordingly, Defendant's motion to compel the mental examination of Plaintiff is GRANTED. Plaintiff Lorena Cuevas is ORDERED to appear for a mental examination as set forth in the motion.

BUREAU, INC. v. PRO WAY FUMIGATION CASE NO.: 25NWCV04647 HEARING: 09/10/2026 @ 9:30 AM #11 TENTATIVE ORDER Plaintiff Creditors Adjustment Bureau, Inc.'s motion to vacate default judgment is DENIED. Moving party to give notice.

Plaintiff Creditors Adjustment Bureau, Inc. (Plaintiff) moves to vacate the default judgment entered in favor of it and requests a new judgment.

Background

On October 30, 2025, Plaintiff filed this breach of contract again against Defendant Pro Way Fumigation Inc. dba Pro Way Fumigation (Defendant) and Does 1 through 10. The complaint alleges Plaintiff's assignor State Compensation Insurance Fund (Plaintiff's Assignor) and Defendant entered into a written agreement in which Plaintiff's Assignor agreed to provide workers' compensation policy insurance to Defendant. (Complaint, P. 11.) The complaint alleges Defendant breached terms in the policy requiring it to provide access to records and payrolls for audits. (Complaint, P. 14.) The complaint asserts a single cause of action for breach of contract.

On March 12, 2026, Plaintiff filed a Request for Entry of Default. On the same date, Default was entered as to Defendant. On April 28, 2026, the Court entered Default Judgment as to Defendant.

Legal Standard

Under Code of Civil Procedure section 663, "[a] judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.

2. A judgment or decree not consistent with or not supported by the special verdict."

Discussion

Plaintiff moves to vacate the default judgment in favor of it on the grounds that it is based on an incorrect and erroneous understanding of the law. This motion is unopposed.

As a preliminary matter, Plaintiff does not follow the proper procedure for relief under Code of Civil Procedure section 663. Code of Civil Procedure section 663a, subdivision (a) requires Plaintiff to file and serve a notice of intention within specific deadlines. Plaintiff does not put forth any authority that permits additional damages through a Code of Civil Procedure section 663a motion.

Moreover, Plaintiff does not show an incorrect or erroneous legal basis for the default judgment. Plaintiff argues that the Court failed to apply Insurance Code section 11670.1, subdivision (a) and therefore failed to award treble damages. However, Plaintiff does not support this contention with well-reasoned arguments or facts.

Insurance Code section 11670.1, subdivision (a), applies only "if the insurer elects to comply with the conditions set forth in subdivision (d)." (Ins. Code, Sec. 11760.1, subd. (a).)

Subdivision (d) provides: "Upon the employer's failure to provide access after the insurer's third request during at least a 90-day period, the insurer may notify the employer through its mailing of a certified, return-receipt, document of the increased premium and the total amount of the costs incurred by the insurer for its attempts to perform an audit as described under subdivision (a)." (Ins. Code, Sec. 11760.1, subd. (d).)

Plaintiff's declaration re Insurance Code section 11760.1 does not establish compliance with Insurance Code section 11760.1, subdivision (d). Plaintiff does not provide evidence that the insurer made three requests prior to notifying Defendant of an increased premium. (Omrani Decl., Exh. 1.) Insurance Code section 11760.1, subdivision (d) expressly becomes actionable upon three requests. (Ins. Code, Sec. 11760.1, subd. (d).) Without compliance with Insurance Code section 11760.1, subdivision (d), subdivision (a) is not triggered and there is no entitlement to treble damages.

Accordingly, Plaintiff's motion to vacate default judgment is DENIED. | Home -->)" -->