Judge: Audra Mori, Case: 20STCV13165, Date: 2023-03-06 Tentative Ruling

Case Number: 20STCV13165    Hearing Date: March 6, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

YVONNE HERPIN,

                        Plaintiff(s),

            vs.

 

CITY OF LONG BEACH, ET AL.,

 

                        Defendant(s).

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      CASE NO: 20STCV13165

 

[TENTATIVE] ORDER (1) GRANTING DEFENSE MENTAL EXAMINATION OF PLAINTIFF; (2) DENYING REQUEST FOR PROTECTIVE ORDER

 

Dept. 31

1:30 p.m.

March 6, 2023

 

1. Background

Plaintiff Yvonne Herpin (“Plaintiff”) filed this action against defendants City of Long Beach (the “City”), Long Beach Police Department, and Gabriela Michelle Rodriguez for damages arising from a motor vehicle accident. 

 

The City now moves for an order compelling Plaintiff to appear for a mental examination with the City’s retained expert, Nicholas Thaler, Ph.D., ABPP-CN (“Dr. Thaler”).  Further, the City moves for a protective order regarding all raw data, testing data, and audio-recordings taken at the exam.  Plaintiff opposes the motion, and the City filed a reply.   

 

The City asserts that while Plaintiff agrees the City is entitled to a defense neuropsychological exam of Plaintiff, Plaintiff will not stipulate to the exam unless the audio-recording of Dr. Thaler’s entire exam is turned over directly to Plaintiff’s counsel, as opposed to only Plaintiff’s expert.  The City contends that Dr. Thaler is precluded by copyright, trade secret laws, and ethical requirements from sharing the audio-recording of the testing portion to Plaintiff’s counsel. 

 

            In opposition, Plaintiff provides that she does not dispute that she has a brain injury due to the incident, and that Plaintiff opposes the motion only to the extent that the City is seeking to limit Plaintiff’s right to record the entire exam.  Further, Plaintiff argues that she has the right to have her attorneys receive the testing material, Plaintiff’s answer sheets, and raw data.  Plaintiff contends that test data can be released without compromising test materials. 

 

            In reply, the City argues that Plaintiff’s counsel can obtain the testing materials from Plaintiff’s own expert, and the City requests Plaintiff be compelled to appear for the mental exam with Dr. Thaler subject to the City’s proposed protective order.  The City argues that Plaintiff will not be prejudiced because she will have access to the audio-recording of the entire exam through herself and her retained expert, because Plaintiff can obtain the raw data and testing materials from her own expert. 

 

2. Motion to Compel the Defense Mental Examination of the Plaintiff

a. Mental Examination

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, Plaintiff affirms she is alleging she suffered a brain injury due to the accident.  Plaintiff does not dispute that her mental condition is at issue.  The Court thus finds good cause for the mental examination sought. 

 

CCP § 2032.320(d) requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.”  The City indicates the scope of the examination in the moving papers.  The Court notes the City also listed the potential tests in the moving papers, which is sufficient to permit Plaintiff to prepare for the examination.  (Mot. Diao Decl. Exh. 2.)  Moreover, Plaintiff does not object to scope of the exam or any of the listed tests, and the City avers that the parties have agreed to the series of tests that will be administered, the location, and the length of the exam.  The Court therefore finds Defendant has met its obligations in this regard. 

 

The City’s motion to compel Plaintiff’s mental examination is granted. 

 

Plaintiff is ordered to appear for a mental examination with Nicholas Thaler, Ph.D. at the Dr. Thaler’s office located at 16633 Ventura Blvd., Ste. 700, Encino, CA 91436.  Counsel must meet and confer to determine the date and time for the examination; if Plaintiff does not meaningfully participate in the meet and confer process, Defendant may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff (extended per Code if by other than personal service). 

 

b. Protective Order

            The City seeks a protective order specifying that all testing, raw data, and audio recordings of the testing portion and test results of the exam be exchanged between only the parties’ experts.  The City avers that audio recordings of the testing portion of the exam contain technical neuropsychological testing materials subject to copyright, trade secret laws, and ethical requirements. 

 

            It is unclear under what authority the City is seeking a protective order in connection with the City’s motion to compel Plaintiff’s mental exam, as they cite no provision of the Code of Civil Procedure in this regard.  The City does not cite any authority holding that a party seeking to obtain discovery by having a mental exam of a plaintiff is entitled to seek a protective order in connection with the exam, as opposed to the plaintiff that is subject to the mental exam.[1]  Moreover, the City does not cite authority supporting the protections that it seeks.  However, the City does mention authority that calls into question the position taken by the City, such as Carpenter v. Superior Court (2006) 141 Cal.App.4th 249. Thus, Defendants do not show a sufficient basis for the requested protective order. 

 

With regard to the audio recording of the exam, CCP § 2032.530(a) provides, “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.”  Nothing in the statute restricts the portions of a mental exam that may be audio recorded.  (Golfland Entertainment Ctrs., Inc. v. Sup.Ct. (2003), 108 Cal.App.4th 739, 750, 752 [trial court abused discretion limiting audio recording to examinee’s responses only; entire mental exam was to be recorded].) 

 

The mental examination statute, section 2032, subdivision (g)(2), states in relevant part: “The examiner and examinee shall have the right to record a mental examination on audio tape.” At the hearing, the trial court explained that it was ordering the recording of David's statements, but not Dr. Epperson's, because “[t]hat's what the Code says, by my reading.” The trial court's reading of the Code was incorrect. Nothing in the applicable statute suggests that the right of the examiner or examinee is limited to recording only selected parts of the examination.

 

Further, recording only the examinee's responses would defeat the main purposes of the audiotaping, which are to ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee's interests are protected (especially since the examinee's counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court. (See Vinson, supra, 43 Cal.3d 833, 846, 239 Cal.Rptr. 292, 740 P.2d 404.)

(Id. at 750.) 

 

            Concerning the City’s argument that the audio recording of the exam and testing materials are subject to copyright laws, the City does not establish that the sharing of testing materials or raw data would actually violate copyright law.  The City does not submit evidence demonstrating exactly what is copyrighted or how the sharing of testing materials or raw data violates such copyrights.  Further, the parties may have alternative ways to protect copyrighted materials, which are often a part of discovery and litigation.  (See, Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 275 [“To the extent a copy of the test must be provided, we note that copies of published court decisions and other copyrighted materials are submitted along with motions rather routinely.  And to maintain the secrecy of the test content, the materials could be filed under seal, similar to the procedure employed when filing trade secret or other confidential material.”].) 

 

            Lastly, the City cites to Business and Professions Code and California Code of Regulations sections in asserting that California has enacted rules application to professionals that deal with these exams.  However, none of the sections cited by City hold that a psychologist or mental healthcare professional is prohibited from sharing testing information or test data with a plaintiff’s attorney under the circumstances presented.  For example, 16 C.C.R. § 1396.3 states, “A psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.”  (Emphasis added.)[2]  The dissemination or reproduction of the testing materials in public or in publications subject to general public distribution is not at issue here. 

 

            For the foregoing reasons, the City’s request for a protective order is denied. 

 

The City is ordered to give notice. 

 

PLEASE TAKE NOTICE:

·       The Court is not available to hear oral argument on this date.  If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued to March 7, 2023.  If this date does not work for the parties, the parties must work with the clerk to find an available date for the continuance.

 

Dated this 6th day of March 2023

 

 

 

 

Hon. Audra Mori

Judge of the Superior Court

 

 

 



[1] Typically, the party that must respond to a discovery request seeks a protective order, but in this instance the City has not identified any discovery requests propounded by plaintiff that require the City to turn over the materials that the City seeks to protect. 

[2] The City through ellipses omitted the emphasized portion of § 1396.3 from its quotation of the statute in its moving papers.