Judge: Christopher K. Lui, Case: 20STCV47977, Date: 2024-03-15 Tentative Ruling

Case Number: 20STCV47977    Hearing Date: March 29, 2024    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiff alleges that she was subjected to sex and disability harassment and discrimination, forcing Plaintiff to take a medical leave, and was further harassed upon her return.

            Defendant Rogelio Navarete filed a Cross-Complaint alleging that Plaintiff’s allegations have caused him emotional distress

The Court granted Cross-Defendant Sandra Goumghar’s anti-SLAPP special motion to strike as to the Cross-Complaint filed by Defendant Rogelio Navarete.

            Defendants Wal-Mart Associates, Inc. and Sam’s Club move to compel Plaintiff’s deposition and to compel a mental examination of Plaintiff.

TENTATIVE RULING

            Defendants Wal-Mart Associates, Inc. and Sam’s Club’s motion to compel Plaintiff’s mental examination by Dr. Greenberger is GRANTED.

ANALYSIS

Motion To Compel Mental Exam

            Defendants Wal-Mart Associates, Inc. and Sam’s Club move to compel a mental examination of Plaintiff.

            Civ. Proc. Code, § 2032.020(a) provides in relevant part:

(a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a . . . mental examination of (1) a party to the action, . . . in any action in which the mental . . . condition . . . of that party . . .  is in controversy in the action.

     (Civ. Proc. Code § 2032.020(a).)

            Civ. Proc. Code, § 2032.310 provides:

(a) If any party desires to obtain discovery by . . . a mental examination, the party shall obtain leave of court.

(b) 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.

(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.

(Code Civ. Proc., § 2032.310.)

            Civ. Proc. Code, § 2032.320 provides in pertinent part:

(a)  The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.

. . .

(d)  An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.

. . .

(Civ. Proc. Code, § 2032.320(a) & (d).)

            Here, Defendants’ counsel Bree Oswald has submitted a declaration reflecting a sufficient meet and confer effort.

            Plaintiff’s Supplemental Complaint deemed filed on August 3, 2023 alleges:

16. The following alleged facts occurred after the filing of the original complaint in this action:

a) Ms. Goumghar returned to work from medical leave on or about September 5, 2022. She continued to work with restrictions.

b) On or about September 12, 2022, Ms. Goumghar was told by her manager, Mike Ruiz, that that the Greeter position, Ms. Goumghar’s current position, was being eliminated and that she should resign and receive a severance package. Mr. Ruiz was well aware that Ms. Goumghar was represented by counsel and that a lawsuit was already pending. Regardless, Mr. Ruiz engaged with Ms. Goumghar without her attorneys present and convinced her to sign a paper indicating that she was resigning and accepting a severance package. Ostensibly, the severance package was the motivating factor utilized by WalMart to secure employee resignations. At no time during this conversation was the amount of the severance package disclosed to Ms. Goumghar. To date, Ms. Goumghar has not received a severance package.

c) On or about September 14, 2022, Ms. Goumghar emailed District Manager Brenda Caldera and rescinded her resignation and acceptance of a severance package. Ms. Goumghar has not received any severance package to date.

d) Plaintiff was wrongfully terminated due to her disabilities on or about September 12, 2022

     (Supplemental Complaint, ¶ 16.)

21. As a direct and legal result of the acts and omissions of Defendant Wal-Mart and DOES 1 through 100, and each of them, Plaintiff was rendered sick, sore, lame, disabled and/or disordered, both internally and externally, and suffered, among other things, numerous internal injuries, severe fright, shock, pain, discomfort and/or anxiety.

22. As a further legal result of the acts and omissions of Defendant Wal-Mart and DOES 1 through 100, and each of them, Plaintiff may have been forced to incur expenses for medical care, X-rays, and/or laboratory costs during the period of Plaintiff’s disability, and is informed and believes, and thereon alleges, that he may in the future be forced to incur additional expenses of the same nature, all in an amount which is at present unknown.

23. Prior to the occurrence of the incidents, Plaintiff was an able-bodied individual, but since said incidents may have been unable to engage fully in Plaintiff’s occupation, and is informed and believes, and thereon alleges, that Plaintiff will be incapacitated and/or unable to perform Plaintiff’s usual work for an indefinite period of time in the future, all to Plaintiff’s damage in an amount which is at present unascertained. Plaintiff will pray leave of court to show the total amount of loss of earnings at the time of trial.

24. As a further direct and legal result of the acts and conduct of Defendant Wal-Mart and DOES 1 through 100, as aforesaid, Plaintiff has been caused, and did suffer, and continues to suffer severe and permanent emotional and mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort and/or anxiety. The exact nature and extent of said injuries is presently unknown to Plaintiff, who will pray leave of court to assert the same when they are ascertained.

     (Supplemental Complaint, ¶¶ 21 – 24 [bold emphasis added].)

            Similar allegations are contained at ¶¶ 34, 38 – 41, 51, 56 – 58, 67, 72 – 74, 95 – 97.

            A plaintiff’s mental condition is only “in controversy” in the action for purposes of an IME if the plaintiff claims that emotional distress is continuing/ongoing, not if it is only in the past. (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1883-87.) Here, Plaintiff has chosen to place her mental condition in controversy in this action. (Civ. Proc. Code, § 2032.020(a).)

            At the previous hearing, the Court identified deficiencies with the notice of motion in terms of the information set forth therein.

Moreover, the Court noted that Dr. Greenberger’s qualifications were not stated, as required by Civ. Proc. Code, § 2032.020(c)(1):

“A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” 

(Code Civ. Proc, § 2032.020(c)(1)[bold emphasis added].)

            Defendants submitted a Declaration of Dr. Dennis Greenberger which sets forth the information which the Court identified as deficient in the original motion. This includes Dr. Greenberger’s qualifications, the exams to be administered, and Dr. Greenberger’s availability on May 13, 2024 at 10:00 a.m. for an approximate eight hour exam, at his office. As such, the motion to compel Plaintiff’s mental examination by Dr. Greenberger is GRANTED.