Judge: Anne Hwang, Case: 20STCV29494, Date: 2023-10-05 Tentative Ruling

Case Number: 20STCV29494    Hearing Date: October 5, 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

BACKGROUND

On August 8, 2020, Plaintiff Yonghun Kim (Plaintiff) filed this action against Defendants Department of Corrections and Rehabilitation, and Ignacio Arce (Defendants), and Does 1 to 100, for injuries relating to a motor vehicle accident. Plaintiff alleges he suffered a traumatic brain injury due to the incident.

Plaintiff has agreed to a defense mental health examination. Dr. Mi-Yeoung Jo is Defendant’s neuropsychologist expert who is set to conduct the examination. However, Dr. Jo requires that she be the only person allowed to record the testing portion of the examination and that the recording must be sent directly to a licensed psychologist or neuropsychologist instead of Plaintiff directly. Plaintiff asserts he has the right to record the entire examination.

Defendants now move for an order preventing third-party recording of the testing portion of Plaintiffs defense mental health examination. They also ask that the recording be sent directly to a licensed psychologist or neuropsychologist of Plaintiff’s choosing following the examination.

LEGAL STANDARD

Under Code of Civil Procedure section 2017.020 courts “shall limit the scope of discovery if” the court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.) The “motion shall be accompanied by a meet and confer declaration.” (Id.)

Code of Civil Procedure section 2032.530 states, “The examiner and examinee shall have the right to record a mental examination by audio technology.” Additionally, a party who submits to a mental examination can demand: (1) “a copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner;” and (2) “a copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.” (Code Civ. Proc. § 2032.610(a).)

MEET AND CONFER

The Court finds that Defendants have complied with the meet and confer requirements by attempting to informally resolve the issue. (Li Decl. ¶ 3–6.)

DISCUSSION

Defendants contend that to comply with Dr. Jo’s professional obligations as a licensed neuropsychologist, Dr. Jo must be the only one to record the testing portion of the DME and the recording must be sent directly to a licensed psychologist or neuropsychologist. Plaintiff contends that he is entitled under Code of Civil Procedure section 2032.530 to record the examination, and that the examination should be sent to counsel subject to a protective order. Both parties discuss a recently published opinion from the Court of Appeal, Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 518, 308 Cal.Rptr.3d 645, which involved a similar set of facts and addressed many of the same concerns Dr. Jo has expressed, but still ruled in favor of permitting the entire examination to be recorded and disclosed to the examinee’s attorney subject to a protective order.

As an initial matter, Defendants do not explain why Plaintiff recording the interview – as opposed to Dr. Jo recording the interview – violates Dr. Jo’s ethical responsibilities. Dr. Jo cites to California Code of Regulations, Title 16, section 1396.3, which describes the reproduction or description of any assessment devices. To the extent that Dr. Jo agrees to record the interview (but not disseminate it to anyone other than a licensed professional), nothing about the regulation cited by Dr. Jo prohibits Plaintiff from recording the interview. Moreover, Code of Civil Procedure section 2032.530 plainly gives Plaintiff, as the examinee, the right to record the examination. Plaintiff has indicated that Plaintiff will be the only one present during the interview.

Defendants also argue that Dr. Jo should be permitted to send the recording to Plaintiff’s expert first, who Defendants argue can then give the recording to Plaintiff or counsel. Defendants argue that the “tension between maintaining testing confidentiality and Plaintiff’s right to discovery” is best resolved by having “Plaintiff’s own psychologist expert determine how best to handle the recording of the confidential portions of Plaintiff’s DME.” (Motion at pg. 7.) The Court disagrees. It is the Court’s responsibility to resolve this “tension,” not Plaintiff’s expert’s responsibility. The Court of Appeal in Randy’s Trucking upheld the trial court’s decision directing the neuropsychologist to transmit the recording to the plaintiff’s counsel on multiple grounds, such as protecting against abuses and disputes over what transpired during the examination, ensuring the examiner does not overstep the bounds set by the court for the mental examination, and enabling the attorney to have more than a second-hand understanding of the information being scrutinized. (308 Cal.Rptr.3d, supra, at p. 661.) The Court of Appeal also disagreed that requiring the transmission of such items and information was prohibited by California Code of Regulations section 1396.3, as that regulation does not address or prohibit compliance with court orders. (Id. at p. 661.) The Court of Appeal further noted that the Legislature did not codify an “expert-to-expert limitation .…” (Id. at p. 669.)

Accordingly, the Court denies Defendants’ request for a protective order. However, the Court would consider a different protective order that designates certain materials as confidential and limits the use and disclosure of those materials.

CONCLUSION AND ORDER

Therefore, the Court DENIES Defendants’ Motion for Protective Order.

            Defendants shall give notice of the Court’s order and file a proof of service of such.