Judge: Craig Griffin, Case: Montejano v. Irvine Ranch Water District, Date: 2023-07-17 Tentative Ruling

Before the Court at present are three motions. The first two were filed on 2/3/23 by Plaintiff Graciela Montejano (“Plaintiff), seeking to quash subpoenas served on Kaiser Permanente’s Dept. of Psychiatry, and Billing Dept. (Motions 1 and 2 below).  The third was filed on 3/27/23 by Defendants Irvine Ranch Water District (“IRWD”) and Paul Cook (“Cook”) (together “Defendants”) to Compel a Mental Examination of Plaintiff (Motion 3 below). 

Motions 1 and 2 are DENIED.  Plaintiff here has plainly put her mental health at issue. (ROA 68, Ex. C at 6.2 and 6.3, and Ex. D, at 122:5-123:2, 144:5-21.)  She has thus also put the cause(s) for her distress at issue. “[B]y asserting a causal link between her mental distress and defendants’ conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 84.)  The evidence presented also demonstrates that she has testified to ongoing or intermittent mental health care treatment through the same provider since approximately 2008.

(Id. at Ex. D, pp. 35, 37-39.)   And it is undisputed here that she has declined to stipulate to limit the scope of those claims in this case.

Although Plaintiff clearly has a legitimate privacy interest in the records at issue, that interest is diminished where, as here, she has put her mental health directly at issue. In contrast, IRWD and Cook have shown a compelling need for the information at issue, to allow them to respond to her claims in this case concerning her alleged emotional distress.  That she has testified about those claims in deposition does not present a less intrusive alternative to the records at issue. And the potential intrusion at issue is less where, as here, a protective order is already in place which can be used to designate as confidential any portions of the records at issue which warrant such a designation.

In addition, although the timeframe identified in the subpoenas is broad, it appears appropriate here based on the evidence presented.  (See ROA 68, Ex. D, at pp. 35-41.)  That the scope also extends to billing and insurance records also appears reasonable here, to allow the defendants to ensure that the relevant treatment records are identified and produced.

The Court thus finds that, on balance, the discovery at issue should be permitted here.  (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)  Motions 1 and 2 are therefore DENIED.

Motion 3 is GRANTED IN PART.

Defendants’ Motion comports with C.C.P. § 2032.310, and the evidence presented is sufficient to demonstrate good cause for the relief requested, as Plaintiff has clearly put her mental condition directly at issue here, and has not asserted that C.C.P. § 2032.320(b) and (c) apply.  The Motion has also adequately specified the tests which may be performed, and Dr. Cohen has explained why each is potentially appropriate for the exam.  (ROA 50, Cohen Decl. at ¶¶ 22-33.) Defendants have also clearly articulated what the exam is to entail and that Dr. Cohen will perform it, have identified his specialty, and have stated the proposed conditions for the exam.  (Id.)  They have also shown that an adequate attempt to meet and confer was made before the Motion was filed. (ROA 48, Peterson Decl., ¶¶ 3-8.) The request for the IME is therefore GRANTED.

The parties disagree as to what should be permitted for the exam, but almost all of Plaintiff’s objections lack merit.

The exam must be in person, for a full day. (See Edwards v. Sup. Court (1976) 16 Cal.3d 905, 912 [“plaintiff’s own psychiatrist has had months, if not years, of unlimited access to the plaintiff for psychoanalysis and treatment… Fundamental fairness requires that a similar unrestricted professional exposure for a brief period be allowed the other side..”].)  The location as proposed is within an appropriate distance. (C.C.P. § 2032.320(e).) Dr. Cohen has also sufficiently explained why up to 8 hours to perform the exam, aside from rest and meal breaks, is needed in this case. (ROA 50, at ¶¶ 7-9, 18-33.)

Plaintiff’s counsel may not attend, even outside of the exam area, as that could compromise the integrity of the exam. (Toyota Motor Sales, U.S.A., Inc. v. Superior Court (2010) 189 Cal.App.4th 1391, 1396-1398.)

The exam may be recorded both by audio and video, by Plaintiff and by the examiner. The Code specifically permits the former, and does not preclude the latter.  (See C.C.P. § 2032.530(a), (b).)  Although Plaintiff argues here that a video is more intrusive, it is also more likely to preclude any disputes about what occurred during the exam, as Defendants propose to video both Plaintiff and Dr. Cohen together.  (ROA 50, Cohen Decl., at ¶¶ 13-17.)

The proposed scope for the exam appears primarily appropriate here, as the examiner must be able to inquire about both the distress Plaintiff alleges and the cause(s) for same. (See ROA 50, at ¶¶ 7-9.)   However, the examiner may not inquire about Plaintiff’s specific sexual partners, history, or practices, or about the content of any communications with her counsel or any persons on her counsel’s staff.  Nor may the examiner require Plaintiff to be fingerprinted [although that does not appear to be something contemplated by Dr. Cohen] or photographed [aside from the videotaping process addressed above]. 

As for confidentiality, Defendants here propose that all psychological testing results be kept confidential and used for purposes of the litigation only. (ROA 44, ¶ 4.) To the extent that Plaintiff’s counsel deems that or any other materials from the exam to also warrant a “CONFIDENTIAL” designation under the existing Protective Order in this case, counsel may designate same accordingly.

Defendants are to submit a proposed order in accordance with CRC 3.1312(a), which comports with C.C.P. § 2032.320(d) and the foregoing.

Defendants’ counsel is to give notice of these rulings.