Judge: Alison Mackenzie, Case: 22STCV28389, Date: 2024-04-25 Tentative Ruling

Case Number: 22STCV28389    Hearing Date: April 25, 2024    Dept: 55

NATURE OF PROCEEDINGS: Motion Of Defendant Southern California Conference of Seventh-Day Adventists for Order Compelling Plaintiff John Doe To Comply With Demand For Physical Examination, And Imposing Monetary Sanctions. Motion Thereof for Mental Examination (C.C.P. §§2032.310-2032.320).

BACKGROUND

In this case, JOHN DOE (“Plaintiff”) seeks damages from SOUTHERN CALIFORNIA CONFERENCE OF SEVENTH-DAY ADVENTISTS (“Defendant”) arising from alleged childhood sexual abuse perpetrated against Plaintiff by a teacher at a school owned by Defendant.

Defendant served a demand for a physical exam of Plaintiff pursuant to Code of Civil Procedure Section 2032.220 and Plaintiff served an objection to the demand, stating that Plaintiff refused to submit to the exam. Defendant now moves for an order compelling Plaintiff to submit to the physical exam as stated in the demand. Defendant has withdrawn its prior request for sanctions in connection with this motion.  

Separately, Defendant moves for an order compelling Plaintiff to submit to a mental exam, as well as sanctions. Plaintiff opposes both motions and seeks sanctions. This tentative ruling addresses both motions.

Defendant’s unopposed requests for judicial notice are granted.

LEGAL STANDARD

Physical Exams: A party may seek a physical exam of a personal injury plaintiff by serving a demand that meets the following conditions: “(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.” Code Civ. Proc., § 2032.220(a)(1), (2). The plaintiff may serve objections to the demand, including a refusal to submit to the exam. Id., § 2032.230(a). A party may move to compel the physical exam if it deems the refusal to submit to the exam is unwarranted. Id., § 2032.250(a).

Mental Exams: A party may seek a court order for a mental exam based on a showing of good cause. Code Civ. Proc., §2032.310(a), §2032.320(a).  A notice of motion for a mental exam “‘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.’”  Carpenter v. Sup. Ct (2006) 141 Cal. App. 4th 249, 259 (hereafter, “Carpenter”); Code Civ. Proc., §2032.310(b).  The moving party must also include a meet and confer declaration showing efforts to resolve the issues in the motion. Code Civ. Proc., §2032.310(b). Code of Civil Procedure Section 2032.320(d) provides that an order granting a 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.”

“‘A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.’”  Stewart v. Colonial W. Agency (2001) 87 Cal. App. 4th 1006, 1016.

ANALYSIS

            Physical Exam

Plaintiff testified at his deposition that he cannot get an erection and sexually climax due to the sexual abuse he suffered. Defendant seeks a physical exam of Plaintiff to determine if Plaintiff’s sexual issues stem from a physiological condition as opposed to the emotional injuries he claims because of the alleged abuse. The demand states that the exam will include a physical exam of Plaintiff’s abdomen and genitalia, and a blood test. Diaz Decl., Ex. 3. Plaintiff served an objection, stating that the exam would be painful, protracted, and intrusive, and violates his privacy rights. Id., Ex. 5. Plaintiff also contended that the demand was untimely. In his opposition to the motion, Plaintiff also complains that the demand seeks for the exam to take place in San Francisco, which is more than 75 miles from his home.

Plaintiff has failed to demonstrate how and why a physical exam of his abdomen and genitalia, and a blood test, constitutes a painful, protracted, or intrusive test or procedure. Plaintiff instead argues that the exam violates his privacy rights. The Court disagrees. The cases relied on by Plaintiff are inapposite because they do not concern the issue of a physical exam in the context of a personal injury lawsuit where Plaintiff has put his physical well-being squarely at the center of the case. Plaintiff’s Complaint placed in issue his related physical damages occurring after alleged sexual molestation. He testified about his sexual difficulties at his deposition and how they are related to his abuse. He cannot make these claims the center of his case and then credibly protest to submitting to a physical exam related to those issues.

While Defendant is correct that Plaintiff did not raise the 75-mile issue in his written objection to the demand, there is insufficient evidence establishing that the parties had reached a stipulation that the exam would take place in San Francisco. “Unless it is clear from the record that both parties assented, there is no stipulation.”  Sarracino v. Superior Court (1974) 13 Cal. 3d 1, 14. In the absence of a stipulation, Defendant’s demand fails to comply with Code of Civil Procedure Section 2032.220(a)(2), irrespective of whether or not Plaintiff specifically noted such deficiency in his notice.

As for the timeliness argument, it is moot because the Court signed the parties’ stipulation to continue the trial date and all related deadlines. This means that Defendant could now serve a revised timely demand. The Court therefore concludes that Defendant is entitled to the physical exam as described in the demand, except that it must take place within 75 miles from Plaintiff’s home unless the parties stipulate otherwise. The parties shall meet and confer on this issue and then Defendant can re-serve another demand. If the parties are unable to come to an agreement on the physical exam despite this Court’s directions, they must schedule an IDC with the Court prior to the continued hearing on this motion.

The Court denies Plaintiff’s request for sanctions.

            Mental Exam

Defendant seeks a mental exam to assess Plaintiff’s current emotional distress, and whether any prior history of trauma may have played a role. Plaintiff objects that the length of the mental exam of up to fifteen hours total is excessive and includes irrelevant tests. Additionally, Plaintiff argues that the exam should not include Plaintiff’s entire medical history with intrusions into private matters beyond the limited scope of implied waiver due to filing the Complaint. Also, Plaintiff contends there is a right to record the audio of an entire exam. The reply argues that declarations of Dr. Austin Blum and Dr. Christine Naber show that these evaluations are often tiring and stressful and conducting the examination over two days would give Plaintiff time for breaks. Reply, p.4.

An examination is limited to the continuing injuries or condition that are in controversy in the litigation. Code Civ. Proc., §2032.020(a); Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1886-1887. The Court concludes that good cause exists for Plaintiff to submit to a mental exam. The parties need to meet and confer to work out their differences on the details of the exam.

The potential length and breadth of the exam, held over two days with two different examiners, seems excessive in relation to the allegations of molestation long ago of a minor. Perhaps counsel should agree to a shorter period.

The question whether judges presently have authority to authorize obtaining medical histories in physical or mental examinations, is undecided and debatable on any appeal. See Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) §8:1520.1. Taking Plaintiff’s medical history needs to be limited and directly related to the allegations of molestation. Although discovery of other stressors may be relevant, the party seeking private information has the burden to show that the information is directly relevant to the claims, by identifying the specific emotional injuries claimed, and showing a nexus between the claimed damages and distress or other harm which may be shown by private information.  E.g., Brenda L. v. Superior Court (1998) 65 Cal. App. 4th 794, 801-802.

There is a statutory right to record the mental exam. Code Civ. Proc., § 2032.530 (a).

Now that the trial date and discovery deadline have been extended, the Court expects the parties to work on these issues and reach a stipulation for the mental exam. As with the physical exam, the Court will continue the hearing to enable the parties to do this work and schedule an IDC in the event they cannot reach an agreement on the exam.

The Court denies the parties’ respective requests for sanctions.

CONCLUSION

The Court continues the motions. The Court will discuss dates with counsel at the hearing to find a date that works for all counsel.