Judge: Anne Hwang, Case: 22STCV29287, Date: 2024-08-20 Tentative Ruling

Case Number: 22STCV29287    Hearing Date: August 20, 2024    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

            On September 8, 2022, plaintiff A.P., a minor, by and through her Guardian Ad Litem Maria Roman, (“Plaintiff”) filed this action against defendant Downey Unified School District (“Defendant”) for damages arising from bullying at school, wherein Plaintiff was allegedly assaulted and battered by a fellow student.

            Defendant now moves to compel a mental examination of Plaintiff, with Veronica Thomas, Ph.D. at her office on August 29, 2024 at 10:00 a.m. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“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.)   

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿¿ 

MEET AND CONFER

The Declaration of George D. Tourkow, Defendant’s counsel, shows that he has communicated with Plaintiff’s counsel multiple times in scheduling this examination. Nevertheless, Plaintiff will not agree to submit for the mental exam. (Tourkow Decl. ¶ 5.) Therefore, the meet and confer requirement is met.

DISCUSSION

Plaintiff claims psychological injuries, emotional trauma, depression, anxiety, and embarrassment. (Tourkow Decl. ¶ 3, Exh. A [FROG #6.3]; Exh. B [Pl. Depo. 177:12-25, 178:9-179:2.) As a result, it appears Plaintiff has put her mental and emotional condition at issue. Furthermore, Plaintiff’s discovery responses and deposition testimony show an on-going mental and emotional injury.

In opposition, Plaintiff does not dispute that her mental and emotional health is at issue but argues the examination is unnecessary because Defendant has access to Plaintiff’s mental health records. However, Plaintiff provides no support that Defendant must rely on pre-existing records and is not entitled to pursue its own investigation of Plaintiff’s claims.

Plaintiff also notes she is still a minor, and states that the examination would be invasive and harmful. If the Court is inclined to grant the motion, Plaintiff requests that her guardian or attorney be present at the exam to ensure her “privacy and safety are protected.” (Opp., 1.)

However, the Supreme Court of California has recognized that “a psychiatric examination of a party in a Civil case should ordinarily be conducted without counsel if the examination is to remain an effective and meaningful device for ascertaining the truth.” (Edwards v. Superior Court (1976) 16 Cal.3d 905, 910.) Plaintiff speculates that the examination would be harmful since Dr. Thomas is a “stranger” and is not there to treat her. The Court finds this unpersuasive. (See Edwards, supra, 16 Cal.3d at 913 [“[A] party's unsupported objections to a particular doctor conducting the examination should be given little weight.”].) Here, the incident took place while Plaintiff was in middle school, and Plaintiff concedes she is a teenager.

Based on the above, there is good cause to conduct the mental examination. Defendant has also properly provided the time, place, manner, conditions, scope, and nature of the examination. Therefore, the motion to compel the mental examination is granted.

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Compel a Mental Examination of Plaintiff is GRANTED. Plaintiff shall appear for a mental examination with Veronica Thomas, Ph.D. at her office on August 29, 2024 at 10:00 a.m.

Defendant shall provide notice of the Court’s order and file a proof of service of such.