Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki

Defendant moves for an order compelling Plaintiffs to submit to a neuropsychological examination by Dr. Elliott Henderson, MD, who will conduct an examination of “Plaintiff’s traumatic brain injury, concussion, cognitive impairment, impaired awareness, insight and memory, and any other areas potentially involved as may be determined based upon complaints of Plaintiff[s], using the following methods and diagnostic tests: patient history, test of Premorbid Functioning (TPF), Dot Counting, the Test of Memory Malingering (TOMM), the Delis Kaplan Executive Function System (D-KEFS), the Rey Auditory Verbal Learning Test (RAVLT), the WAIS-IV, selected items of the WMS-IV, the Behavioral Rating Inventory of Executive Functions (BRIEF-A) the MMPI 3, the Detailed Assessment of Traumatic Stress (DAPS), the Beck Depression Inventory and Structured interview format of the Hamilton Anxiety Scale, and Structured Inventory of Malingered Symptomatology.” (Proposed Order at 2:3-15.)

Plaintiffs filed an omnibus opposition to the instant motion as well as Defendant’s motion to compel a neurological examination by Dr. McIntire, set for hearing concurrently with the instant motion.

With respect to the examination by Dr. Henderson, Plaintiffs argue that the only issue with the examination is that Dr. Henderson should be required to disclose raw data and audio recordings of the examination to Plaintiffs’ counsel, not just Plaintiffs’ neuropsychological expert. Plaintiffs argue that any privacy concern regarding the production of the data and testing materials can be alleviated by producing the information subject to a protective order. Plaintiffs also contend they are entitled to audio record the mental examination in its entirety.

In reply, Defendant argues that Plaintiffs have not established the need for raw data or an audio recording to be directly transmitted to their counsel.

Legal Standard

Civil discovery by physical and mental examination is governed by Code of Civil Procedure sections 2032.010 through 2032.650. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249 258-59.) “As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” (Id., citing Code Civ. Proc., §§ 2032.020, subd. (a), 2032.310.)

Code of Civil Procedure section 2032.220, subdivision (a) allows:

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 05/28/2026 Hearing on Motion to Compel Neuropsychological Independent Medical Examination in Department 16C

may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:

(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.

(2) The examination is conducted at a location within 75 miles of the residence of the examinee.

Pursuant to Code of Civil Procedure section 2032.310, subdivision (a), “[i]f any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.” The motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination.” (Code Civ. Proc., § 2032.310, subd. (b).) The court shall grant a motion for a mental examination under section 2032.310 “only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (a).) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2032.310, subd. (b).)

“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.” (Code Civ. Proc., § 2032.320, subd. (d).)

Discussion

The Court will address three procedural issues prior to the merits. First, the Court notes that Defendant’s notice of motion is defective. Code of Civil procedure section 2032.310, subdivision requires 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.” Here, Defendant only includes the required information in its proposed order.

Nevertheless, Plaintiffs do not oppose the motion on this basis. Therefore, any objection based on defective notice is waived. (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 ['It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion']; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1289 ['if the party appears at the appropriate hearing and opposes the motion on the merits – but without making any request for a continuance or demonstrating prejudice from the defective notice, the issue is waived'].)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 05/28/2026 Hearing on Motion to Compel Neuropsychological Independent Medical Examination in Department 16C

Second, Defendant fails to clearly state whether it is moving pursuant to Code of Civil Procedure section 2032.220 or section 2032.310. The Court notes that section 2032.220 authorizes only one physical examination of the Plaintiff. It is unclear from the moving papers, but it appears that Plaintiffs have already submitted to one orthopedic physical examination by Dr. Winter. (See, generally, Declaration of Wayne Stevenson (“Stevenson Decl.”), Ex. H.) Thus, the Court presumes Defendant moves for an additional examination or a mental examination pursuant to Section 2032.310.

Third, although California Rules of Court, rule 3.1345(a)(6) requires a separate statement for a “medical examination over objection,” the Court concludes that Defendant has sufficiently set forth the factual nature of the dispute and that Plaintiffs were able to provide a substantive opposition. The Court will exercise its discretion to consider the merits of the motion notwithstanding Defendant’s failure to include a separate statement as required by Rule 3.1345(a)(6).

With respect to the merits, it appears the parties have sufficiently met and conferred in connection with the instant motion. (Stevenson Decl., Exs. G, H, I.) The Court finds that Defendant has demonstrated good cause for an order compelling Plaintiff to submit to an examination. (Id., Ex. A, at p. 9:3-11:27; Ex. B, at p. 9:11-12:16.) Indeed, Plaintiffs do not object to submitting to an examination, but merely argue that the raw data and audio should be provided to their counsel. Both parties extensively discuss the holding in Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818.

Case law has held that there is no statutory authority precluding a court from ordering disclosure of written test questions used in connection with an IME. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 271.) In Randy’s Trucking, the trial court granted the defendants’ motion to compel the plaintiff to undergo a mental examination, but denied its request to limit transmission of the raw test data, test materials, copyrighted publications, or documents containing proprietary information to anyone other than a licensed psychologist or neuropsychologist. Instead, it ordered defendants’ neuropsychologist to transfer the information to plaintiff’s attorney, subject to a protective order. (Randy’s Trucking, Inc., supra, 91 Cal.App.5th at p. 824.) The protective order provided:

“Plaintiff’s counsel, defense counsel and all experts, consultants and employees of the respective firms shall maintain the security of all raw data, test materials and other medically private information obtained during the examination. However, such raw data, test materials and other medically private information may be disclosed to plaintiff’s counsel, defense counsel and all experts, consultants and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 05/28/2026 Hearing on Motion to Compel Neuropsychological Independent Medical Examination in Department 16C

employees of the respective firms for use in this case. Such materials and data may also be shown to the trier of fact at the time of trial, or such other time as may be necessary for the adjudication of the above-captioned matter. These materials may be used for no other purpose, may not be disseminated to any other party and the parties shall take all reasonable steps to maintain the confidentiality of the above-identified materials.”

(Id. at p. 828.) The protective order also required the parties to “destroy the aboveidentified materials at the cessation of this case, in accordance with the provisions of the California Rules of Professional Conduct.” (Ibid.)

The defendants in Randy’s Trucking moved for reconsideration on the ground that their retained expert had recused herself from the case, and they had spoken with two experts who refused to do the exam under the court’s existing order. (Id. at pp. 828-829.) The trial court denied the motion for reconsideration. Defendants filed a petition for writ of mandate. The Court of Appeal denied defendants’ petition for writ of mandate, finding that the trial court did not abuse its discretion. (Id. at p. 825.)

In its analysis, the court noted that “[t]here is no statutory authority, . . . precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination” and “given the trial court’s broad discretion in discovery matters, it retains the discretion to order the production of such materials.” (Id. at pp. 834, 837 [citing Carpenter, supra, 141 Cal.App.4th at 249].) It also found that the defendants had not demonstrated that the need to protect the doctor from violating her ethical and professional obligations outweighed plaintiffs’ need for the materials. (Id. at p. 837.) The doctor explained the problems with allowing a third-party observer (“TPO”) and the recording of the examination, including:

(1) compromising the validity of future neuropsychological test results; (2) potential misuse and misinterpretation of tests by untrained TPOs “who have no compelling interest in protection of copyrighted test content”; (3) potential conflicts with the APA Ethical Standards and “several key principles in the Specialty Guidelines for Forensic Psychology of the American Psychological Association (2013)”; (4) the increased likelihood test content and instructions would be disseminated which “raises the risk that motivated parties will coach and prepare examinees for testing in advance, specifically to influence test results”; and (5) “ ‘[l]awyers involved in brain injury litigation routinely coach their clients how to approach neuropsychological testing to their advantage.’ “

(Id.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 05/28/2026 Hearing on Motion to Compel Neuropsychological Independent Medical Examination in Department 16C

The court found this insufficient because the doctor:

did not explain why a protective order would not ameliorate those dangers. She also did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs’ attorney subject to a protective order. Dr. Victor identified numerous standards in the APA Ethical Standards by number which she claimed could be violated if TPO were allowed, but Dr. Victor did not explain the potential violations and the APA Ethical Standards were not submitted to the trial court.

(Id. at 837-838.)

On the other hand, the Court explained that “[w]ithout the raw data and audio recording, plaintiffs 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.” (Id. at p. 838.) It added that “while defendants assert plaintiffs’ attorneys could not interpret the test materials, they would not necessarily be required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.” (Ibid.)

The Court also agreed with plaintiffs that it was insufficient to submit the raw data and audio recordings to plaintiffs’ retained expert because “[plaintiffs] should not be forced to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective crossexamination, ‘the attorney must themselves possess more than a second-hand understanding of the information being scrutinized.’” (Ibid.)

Here, Defendant argues that the request for the raw neuropsychological testing data would expose Dr. Henderson to a risk of ethical violation in permitting the potential release of the testing materials to the general public. However, Defendants offer no evidence that Dr. Henderson actually objects to the production of raw testing data to Plaintiffs’ counsel subject to a protective order.

Additionally, although Plaintiffs’ counsel does not provide evidence that he requires the raw data to prepare for trial via his declaration, the Court notes that the analysis set forth in Randy’s Trucking sufficiently articulates a plaintiff’s need for such information as it allows the plaintiff’s counsel to “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.” (Id. at p. 838.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 05/28/2026 Hearing on Motion to Compel Neuropsychological Independent Medical Examination in Department 16C

The Court has weighed Defendants’ concerns against Plaintiffs’ need for the raw data. The Court concludes that Plaintiffs have a legitimate need for the raw data and that any concerns regarding the data can be satisfied with the protective order. The Court will exercise its discretion and order the release of any raw data and audio recordings of the examination to the Plaintiffs’ attorney, subject to a protective order.

Plaintiffs do not oppose any of the other conditions of the examination set forth in Defendants’ proposed order.

Finally, Plaintiffs’ request for reimbursement of $800 in late cancellation fees for the services of a nurse practitioner as a result of Defendant’s cancellation of Dr. McIntire’s previously scheduled examination is denied. Plaintiffs present no legal authority that would support an award of the requested expenses.

Disposition

Accordingly, Defendant’s motion is GRANTED as set forth above.

The parties are ordered to meet and confer on a protective order consistent with Randy's Trucking prior to June 5, 2026. Although the Court cannot direct the parties to stipulate to a protective order, it would appear that a protective order regarding the raw data and audio of the IMEs would be in the best interests of both parties. Dr. Henderson shall provide the raw data from the testing to Plaintiff's counsel within a reasonable time after the examination. However, the raw data and testing material shall be subject to the protective order.

The parties are ordered to meet and confer on a mutually agreeable date for the neuropsychological examination to take place, but they shall take place no later than July 1, 2026.

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.)

Moving party’s notice of motion does not provide full notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving party is directed to contact Plaintiffs’ counsel and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving party is unable to contact Plaintiffs’ counsel prior to hearing, moving party is ordered to appear at the hearing.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 05/28/2026 Hearing on Motion to Compel Neuropsychological Independent Medical Examination in Department 16C

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 16C Zoom Link is https://saccourt-ca-gov.zoomgov.com/j/16030877014 and the Zoom Meeting ID is 160 3087 7014. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.

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 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 05/28/2026 Hearing on Motion to Compel Neuropsychological Independent Medical Examination in Department 16C

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.