Tavares v. Astorga et al

TENTATIVE RULING(S) FOR August 14, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

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UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

Tavares v. Astorga et al

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TENTATIVE RULING(S):

Before the Court is Defendant Walmart’s Motion to Compel Independent Mental Examination

(“IME”) of Plaintiff. On July 31, Astorga joined Walmart’s motion.

On August 4, this Court held an ex parte hearing and moved up the date for hearing on the

pending motion. The Court required Plaintiff to file any opposition by August 10, 2026, and

required Defendants to file any reply by August 12, 2026.

Plaintiff filed her opposition on August 10, 2026. Plaintiff represents that she has agreed to the

at-issue IME with Defendants’ chosen expert, Dr. Judy Ho, and that she will appear on August

17, 2026—the date selected by Walmart. Plaintiff contends that the remaining dispute concerns

limitations on the terms and scope of the IME, including the length of the examination, exchange

of test data, and related scheduling and reporting deadlines.

Defendants filed a reply. Defendants contend Plaintiff’s proposed limitations are not workable

under professional and ethical standards and submit a declaration from Dr. Ho in response.

After consideration of the parties’ briefing and submissions, the Court finds good cause to grant

Defendants’ motion.

I. Summary of Positions

In opposition, Plaintiff states that she does not dispute that an IME should occur. Plaintiff instead

seeks to finalize terms governing the examination and proposes a compromise position that

includes, among other things: (1) a seven-hour examination exclusive of breaks; (2) an expert-

to-expert-only exchange of raw test data; and (3) a report deadline intended to allow Dr. Ho

more than three weeks to prepare her report while ensuring production at least two business

days before the September 15, 2026 mediation. Plaintiff further proposes that Dr. Ho be

permitted to administer the full testing battery originally proposed by Walmart, subject to a

seven-hour examination limit, with Dr. Ho allocating time among the tests as she deems

appropriate.

In reply, Defendants argue Plaintiff’s proposed modifications do not meet appropriate

professional and ethical standards and request that Plaintiff proceed to the IME in accordance

with Dr. Ho’s original joint stipulation conditions and the Stipulation and Highly Sensitive

Protective Order.

II. Merits

Plaintiff does not contest the merits of the motion as to whether an IME should be compelled,

given Plaintiff’s mental health condition and the mental health damages at issue in the

underlying action.

Plaintiff further argues the Court should not consider Dr. Ho’s declaration submitted with

Defendants’ reply. However, the Court has discretion to accept reply declarations. See Jay v.

Mahaffey (2013) 218 Cal.App.4th 1522, 1538; RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co.,

Inc. (2020) 56 Cal.App.5th 413, 432 (holding that reply briefs that do “not contradict” earlier

statements, but “instead offer[] texture to rebut” are permitted); Alliant Ins. Services, Inc. v.

Gaddy (2008) 159 Cal.App.4th 1292, 1308.)The Court, in its discretion, considers and relies

upon the declaration submitted with the reply. Dr. Ho’s declaration addresses why certain

elements of testing and data are necessary for her to complete a sufficient examination.

The Court finds that Defendants have established good cause and produced specific facts

justifying the requested discovery and that the inquiry is relevant to the subject matter of the

action or reasonably calculated to lead to the discovery of admissible evidence.

Accordingly, the Court declines to adopt Plaintiff’s contested compromise limitations and instead

orders the IME on the terms that allow a seven-hour examination exclusive of breaks and

implement Dr. Ho’s medical standard of testing.

RULING

Defendant Walmart’s Motion to Compel Mental Examination is GRANTED.

1. Plaintiff shall submit to a mental examination by Defendants’ retained expert, Dr. Judy

Ho, on August 17, 2026, unless otherwise ordered by the Court.

2. The IME shall be limited to a seven-hour examination exclusive of breaks.

3. The IME shall proceed using Dr. Ho’s medical standard of testing, including

administration of the applicable testing battery as required for a sufficient evaluation,

subject to the seven-hour limit.

4. Astorga’s joinder is GRANTED.