Judge: Anne Hwang, Case: 20STCV15816, Date: 2023-08-14 Tentative Ruling

Case Number: 20STCV15816    Hearing Date: August 14, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Desmond Real, a minor by and through his Guardian ad Litem Nancy Gonzalez (“Plaintiff”) sued Defendants Los Angeles Unified School District (“LAUSD”) and David Noh (“Noh”) (collectively, “Defendants”) based on injuries Plaintiff alleges he sustained while he was in class and was struck by Defendant Noh, his teacher. 

LAUSD moves to compel Plaintiff to submit to a mental examination, which shall be conducted by Anne C. Welty, M.D. a Board Certified pediatric psychologist at her office at 5855 E. Naples Plaza, Suite 204, Long Beach, CA 90803 on September 14, 2023 at 9:00 A.M..  Plaintiff filed a late opposition on August 11, 2023.

ANALYSIS

“If 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.  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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Civ. Proc., § 2032.310, subds. (a)-(b).)  “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [“the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary”].)    

A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  And “[a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (Id. at p. 839.) 

Here, Plaintiff contends he suffered emotional and psychological injures, and he has received treatment for these injuries.  (See Moreno Decl. ¶¶ 4-5, Exhs. A-B.)  Thus, LAUSD contends that Plaintiff has placed his mental state at issue in this action. (Motion at pg. 3, 5) Moreover, LAUSD points out that, during the meet and confer process, Plaintiff did not object to scope of the examination or that it would be conducted by Dr. Welty. (Motion at pp. 5-6; Moreno Decl. ¶¶ 7-11, Exhs. C-E.) Instead, Plaintiff’s counsel sought to have Plaintiff’s mother to be present during the testing and assessment portion of the mental examination based on Plaintiff’s age. (Motion at pg. 7; Moreno Decl. ¶ 7, Exh. C.) However, LAUSD contends that this request is not reasonable because Plaintiff, who is fourteen years-old, has not shown that his mother’s presence is necessary to protect Plaintiff’s rights during the mental examination. (Motion at pg. 8.) LAUSD clarifies that it does not take issue with the mother being present when Dr. Welty is collective information regarding Plaintiff’s background history. (Motion at pg. 4.)

In Plaintiff’s belatedly filed opposition, Plaintiff argues that Defendant should be required to provide more information about the proposed examination, including the duration of the tests. The opposition further states that Plaintiff requests that “his mother be by his side when the tests occur.”  (Opp. at pg. 3.)

The Court finds Plaintiff’s assertions of emotional and psychological injuries, place his mental health at issue such that good cause exists for LAUSD’s requested examination of Plaintiff. The Court further finds that Defendant has provided sufficient information regarding the conditions, scope, and nature of the examination, and the diagnostic tests and procedures to be conducted.  Contrary to Plaintiff’s assertion, Code of Civil Procedure section 2032.320(d) does not require Defendant to state the time estimate for each test.

With regard to Plaintiff’s request to have his mother present during the testing and assessment examination portions of the request, the Court does not find it reasonable. Because Plaintiff has failed to provide any facts or argument in the opposition, there is no evidence to suggest that Dr. Welty will not conduct the examination in an ethical manner. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 846.) Based only on Plaintiff’s age, there is nothing to suggest that Plaintiff would be need additional safeguards to protect his rights because there is no claim that Plaintiff is impaired from participating in the examination alone. (See generally Golfland Entertainment Centers v. Superior Court of San Joaquin County (2003) 108 Cal.App.4th 739 [discussing that a parent may be present during a mental examination where there is a risk that the minor plaintiff who has suffered a brain injury would be subjected to repetitive questions].)

CONCLUSION AND ORDER

Therefore, the Court grants LAUSD’s motion to compel Plaintiff to submit to the neurological examination by Dr. Welty at her office located at 5855 E. Naples Plaza, Suite 204, Long Beach, CA 90803 on September 14, 2023 at 9:00 A.M. Plaintiff’s mother shall be excluded during the testing/assessment portion of the mental examination.

LAUSD shall provide notice of this ruling and file a proof of service of such.