Judge Audra Mori, Case BC701108 2023-02-28 Tentative Ruling

Plaintiff Cristoval Garcia Chavez (“Plaintiff”) filed this action against Defendants Kevin Lemar Parrott, MV Transportation, Inc., and City of Los Angeles (collectively, “Defendants”) for damages arising from a motor vehicle accident vs. pedestrian accident.

Defendants, at this time, move for an order compelling Plaintiff to appear for a mental examination. Additionally, Defendants seek a protective order directing the examination to move forward “under the ethical restrictions of neuropsychologists—limiting the dissemination of testing materials, including raw data, to neuropsychologists only; and limiting audio-recording to the clinical interview portion only in order to protect the confidentiality and integrity of neuropsychological testing materials from entering the public domain; and to disallow the presence of a third party observer during the [neurophysiological medical examination].” (Mot. at p. 2:23-27.) The motion is unopposed.

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.)

Defendants avers that as a result of the incident, Plaintiff is alleging mental injuries, including a traumatic brain injury, PTSD, head pain, difficulty concentrating, poor memory, and depression, among other conditions. Plaintiff does not oppose the motion or dispute putting his mental condition 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.” Defendants indicate the scope of the examination in the moving papers. The Court notes Defendants also listed the potential tests in the moving papers, which is sufficient to permit Plaintiff to prepare for the examination. (Mot. at p. 2:10-17.) Moreover, Plaintiff has not opposed the motion or otherwise objected to scope of the exam or any of the listed tests. The Court therefore finds Defendant has met its obligations in this regard.

Plaintiff is ordered to appear for a mental examination with Manuel Saint Martin, M.D., J.D. at 8616 La Tijera Blvd. # 400, Los Angeles CA. 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).

Defendants further provide that after meeting and conferring with Plaintiff about a mental exam, Plaintiff conditioned appearing for such an exam on the following: (1) Providing the examinee and his office with the raw data or testing materials, (2) recording the entirety of the mental exam, and (3) allowing an observer to be present at the mental exam. Defendants, therefore, seek an order requiring Plaintiff to submit to the mental exam and limiting the production of testing materials, including raw data, to a licensed psychologist, disallowing audio recording the neuropsychological testing portion, limiting audio recording to the clinical interview portion only, and disallowing the presence of an observer or third-party during the neuropsychological examination of Plaintiff.

CCP § 2017.020(a) states, “The court shall limit the scope of discovery if it 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. The court may make this determination pursuant to a motion for protective order by a party or other affected person…” (See also CCP § 2019.030 [the Court can restrict the frequency or extent of a mental exam if it determines the discovery sought is unduly burdensome].)

Defendants do not provide a case to show that CCP §§ 2017.020(a) or 2019.030 can be used to protect one conducting discovery, as opposed to one who is subject to discovery. They do not explain how the requests made by Plaintiff can be considered discovery or how they “outweigh the likelihood that the information sought will lead to the discovery of admissible evidence.” Thus, Defendants have not shown that CCP § 2017.020(a) is applicable in this situation. Even assuming for the purposes of argument that a party conducting or propounding discovery can seek a protective order under these sections, Defendants provide no case law to show that the examiner requires a protective order.

Defendants cite not one case supporting the protections that they seek. However, as there is authority that calls into question the position taken by Defendants, and a lack of evidence provided by Defendants concerning the copyright concerns that they raise, the Defendants do not meet their burden to show that the requested protective order would appropriate.

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.)

Concerning the assertion that sharing raw data directly with Plaintiff or another present individual “creates copyright issues” and the “potential for dissemination” to the public, Defendants do not establish that the sharing of raw data would actually violate copyright law. Indeed, they do not show evidence of exactly what is copyrighted or how the sharing of raw data would violate such copyrights. The vague assertion that “significant harm to society would result should the testing material information enter the public domain” is insufficient to warrant a protective order. 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.”].).

Hon. Audra Mori

Judge of the Superior Court