Judge Audra Mori, Case 20STCV02018 2022-08-26 Tentative Ruling

Plaintiff Sean “Ryder” Elliott (“Plaintiff”), a minor, by and through his guardian ad litem, Rosalinda Perez, filed this action against defendants Torrance Unified School District alleging causes of action for (1) negligence, (2) negligent hiring, supervision, or retention of employees, (3) dangerous condition of public property. The complaint alleges that Plaintiff Ryder is an 11-year-old who attends Arnold Elementary School, has an Individualized Educational Plan and is supposed to be shadowed always while at the school. The complaint alleges that on April 4, 2019, during physical education class, Plaintiff was running in an area that was not safely maintained that caused Plaintiff to slip on sand and fall into a cement barrier, which seriously injured Plaintiff.

Defendant now moves to compel a mental examination of Plaintiff. Defendant filed the original notice of motion and motion on June 29, 2022, and then filed an amended notice of motion and motion on July 22, 2022. The Court will thus consider only the amended moving papers. Plaintiff opposes the motion, and Defendant filed a reply.[1]

Defendant asserts that in response to Defendant’s special interrogatories, Plaintiff originally claimed the incident caused him to suffer from post-traumatic stress disorder (“PTSD”) and mental anguish, and that Plaintiff later served supplemental responses to the special interrogatories claiming mental and emotional suffering, including distress, anxiety, and fear, among other conditions. Defendant contends that Plaintiff’s mental and emotional state is critical to the outcome of the case, and that Defendant will be prejudiced if not allowed to obtain a mental exam of Plaintiff given Plaintiff’s claims. Defendant avers there is good cause for the mental exam.

In opposition, Plaintiff asserts that he has chosen not to claim extreme emotional distress, and that he has not been diagnosed with PTSD. Plaintiff contends that he suffered emotional distress related and proportionate to his injuries and the subsequent medical treatment, and that Plaintiff supplemented his discovery responses to reflect this. Plaintiff argues that he has stipulated pursuant to CCP § 2032.320 such that no order for mental examination can be issued, and that the exam is meant to harass Plaintiff, who is a child with autism.

In reply, Defendant contends that Plaintiff’s responses to Defendant’s special interrogatories served on April 25, 2022, which reflect the current state of discovery, show that Plaintiff is claiming extreme emotional injuries as a result of the incident. Further, Defendant contends that Plaintiff is trying to claim the signs and symptoms of PTSD and to seek damages for his emotional injuries. Additionally, Defendant argues that Plaintiff has not properly stipulated to limiting his claims of emotional injuries.

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP §2032.320(a).)

The examination will be limited to whatever condition is “in controversy” in the action. (CCP §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.

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of the plaintiff. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)

Here, Defendant submits evidence showing that Plaintiff’s most recent discovery responses show that he is claiming that because of the incident, he has had to “endure extreme emotional toll of sustaining life-threatening injuries and medical conditions,” that he has been advised to obtain mental health care services for PTSD, that he “continues to experience mental and emotional suffering, including distress, anxiety, fear, apprehension, increased vigilance, timidity, and caution,” and that he is constantly fearful of contracting an illness. (Mot. Kessler IV Decl. Exh. G.)

Plaintiff, in opposition, asserts that he has stipulated pursuant to CPP § 2032.320 that he is not claiming emotional distress beyond that which is associated with the physical injuries he sustained, so a mental examination cannot be ordered absent exceptional circumstances.

(b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.

(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.

Plaintiff argues that he has “stipulated that a) no claim is being made for mental or emotional distress beyond that associated with his physical injuries and b) no expert testimony will be offered at trial by an expert as to this sort of usual mental or emotional distress.” (Opp. at 6:20-22.) However, in asserting that Plaintiff has stipulated to the above, Plaintiff cites to paragraphs 10, 11, and 14 of Plaintiff’s counsel’s declaration submitted with the opposition. The subject paragraphs and relevant exhibits do not clearly state that Plaintiff is stipulating to the conditions set forth by CCP § 2032.320(b) and (c). For example, in an email chain between the parties referenced in paragraph 10, Plaintiff’s counsel states only, “Plaintiff is not making a claim of diagnosis or treatment for PTSD.” (Kelly Decl., ¶10, Exh. G.) The representations in paragraph 11 purport to summarize an oral meet and confer conversation, not a final stipulation. The meet and confer letter referenced in paragraph 14 is silent as to whether or not expert testimony regarding mental and emotional distress will be presented by Plaintiff at trial in support of the claim for damages. (Id., ¶14, Exh. J.) Accordingly, Plaintiff, at this time, does not submit a stipulation showing that Plaintiff is not making a claim for mental or emotional distress over and above that usually associated with physical injuries, and that no expert testimony will be offered.

Unless Plaintiff files an adequate written stipulation in compliance with CCP § 2032.320(b) and (c), there is good cause for a mental examination as the evidence shows Plaintiff has put his mental and emotional condition in controversy.

CCP § 2032.320(d) requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.” Defendant indicates the scope of the examinations and potential tests in the moving papers. (Mot. at p. 3-5:24-6, Kessler IV Decl. Exh. F.) Defendant, therefore, has met its obligations in this regard.

However, the Court notes that as part of the proposed examination, Defendant’s expert wishes to interview one of Plaintiff’s parents for one hour. “Nothing in section 2032.020 contemplates a ‘collateral interview’ of a minor's parents as part of a mental examination of a party who is a minor.” (Roe v. Sup.Ct. (Hollister School Dist.) (2015) 243 Cal.App.4th 138, 145.) “While interviewing the parents of a child to gain background and information about that child may be a sound professional practice from a psychiatrist's viewpoint, section 2030.020's plain language does not empower a trial court to make a discovery order requiring such parental interview as part of a mental examination of a party who is a minor.” (Id.) Therefore, Defendant’s expert is precluded from conducting an interview of Plaintiff’s parent/s as part of the exam.

In addition, Plaintiff asserts that given his condition, he cannot tolerate sessions lasting longer than two hours. Plaintiff is permitted to take breaks from the examination as Plaintiff requires.

Defendant’s motion is granted subject to the limitations outlined above. Plaintiff is to attend an exam with Dr. Jeffrey A. Sugar on September 2, 2022, at 10:00 a.m. at 17862 E. Seventeenth St, Suite 204 Tustin, California 92780.

If Plaintiff files a written stipulation that clearly complies with CCP § 2032.320(b) and (c) prior to hearing, the court may reconsider the tentative at the hearing.

Hon. Audra Mori

Judge of the Superior Court

[1] On August 22, 2022, Plaintiff filed a sur-reply. However, Plaintiff did not request or receive leave of Court to file a sur-reply. Therefore, the sur-reply will not be considered.