Judge: Daniel S. Murphy, Case: 20STCV03170, Date: 2025-05-07 Tentative Ruling

Case Number: 20STCV03170    Hearing Date: May 7, 2025    Dept: 32

BACKGROUND

On January 24, 2020, Plaintiffs Jose Luis Sanchez (Sanchez) and Manuel Acevedo Fernandez (Acevedo, collectively referred to as Plaintiffs) filed this action against Walt Disney Parks and Resorts U.S., Inc. (WDPR), Disney Worldwide Services, Inc. (DWWS), Rona Kay (Kay), alleging violations of FEHA, wrongful discharge, defamation, and intentional infliction of emotional distress.

The operative First Amended Complaint (FAC) , filed January 29, 2020, adds Defendants Diana Eid (Eid) and Janae Bueno (Bueno) and asserts additional FEHA claims. Eid and Bueno were subsequently dismissed on summary adjudication, along with certain FEHA claims.

The FAC alleges Plaintiffs worked for WDPR from the 1980s until 2019, when they were terminated. Plaintiffs allege they were terminated because of efforts by WDPR to replace older workers with younger employees. (FAC, ¶22.) In October of 2018, Plaintiffs allege they were falsely accused of viewing pornography while at work. (Id. at ¶25.) Without any meaningful investigation into the allegations, Plaintiffs allege these allegations against them were used to terminate their employment. (Id.)

The motion now before the Court is Disney Parks and Resorts U.S., Inc.’s (WDPR) Motion to Compel Plaintiff Manuel Acevedo to Answer Additional Questions at A Further Mental Examination and Request for Sanctions Against Shegerian & Associations, Inc. in the amount of $13,999.00 (the Motion). Plaintiffs oppose the Motion, Moving Defendant files a reply.

LEGAL STANDARD

“Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2032.020, subd. (a).) “If any party desires to obtain discovery by . . . a mental examination, the party shall obtain leave of court.” (Id., § 2032.310, subd. (a).) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Id., § 2032.320, subd. (a).)

DISCUSSION

I. Introduction

            In their moving papers, WDPR seeks an order compelling Plaintiff Manuel Acevedo to answer additional questions at a further mental examination. The Motion stems from Acevedo refusing to answer the following two questions asked by Dr. James E. Rosenberg, M.D. (Dr. Rosenberg) during the first mental exam:

1.     My understanding from reading your depositions that even though you didn’t watch [inappropriate videos] while at Disney that you did at the time have videos on your phone of man masturbating?

2.     Here’s my second to last question. Once again I’m saying this is a hypothetical (I’m not saying this is factually the case), if the forensic examiners found something of a sexual nature on your phone that is actually illegal, would that be causing you stress?

(Moving Papers, 11:15-22.)

            WDPR claims Acevedo refused to answer these questions at the instruction of his attorneys. WDPR argues the questions about the possession of pornography on Acevedo’s device are relevant because: (a) WDPR has an after-acquired evidence defense, and (b) questions about pornography are relevant in assessing Acevedo’s mental stated and alleged emotional distress.   

            Plaintiffs contend the questions are inappropriate because: (a) they are outside the March 29, 2024 Court order, (b) they are not relevant to WDPR after-acquired evidence defense, and (c) the questions are not related to Acevedo’s alleged emotional distress. Upon reply, WDPR reiterates its moving arguments, and additionally contends the attack on WDPR”s after-acquired evidence defense is improper. As explained below, the Court grants the motion in part and denies the motion in part.

a.     Relevance

                 i.          Relevance to Plaintiff’s Emotional Distress

Upon filing the instant suit, Plaintiff Acevedo placed his emotional state at issue, neither party disputes this. As noted in the Order, “[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Sup. Ct. (1987) 43 Cal.3d 833, 839, (“Vinson”).) “In addition, by 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. (Id. at p. 840.)”

Here, the first question is relevant to Acevedo’s emotional distress claim because the material on the phone may have been a cause of Acevedo’s emotional distress outside of his termination of employment. Dr. Rosenberg in his declaration states that being discovered with such conduct would constitute a significant situational stressor for Acevedo. (Declaration of James Rosenberg, ¶14.) Acevedo counters that this question should not be answered because Acevedo is entitled to privacy regarding his sexual habits. In support of this contention, Acevedo points to both Cal. Const. Art. 1 §1 and Vinson. However, the question itself asks nothing directly of Acevedo’s sexual orientation, interest, behaviors, nor preferences. Here, the Court can distinguish from Vinson. WDPR has not provided good cause to delve into Acevedo’s sexual right to privacy, but that is not what the first question asks. Unlike in Vinson where the defendants attempted to probe the sexual history of the plaintiff, the question here is specifically about what is on Acevedo’s device, and whether it may be a source of emotional distress. Therefore, the Court concludes that the first question is permissible.  However, it is undisputed that Acevedo, in his deposition, has already acknowledged that he had such videos on his phone.  As such, it does not appear to the court that Acevedo needs to acknowledge this fact once again for Dr. Rosenberg to complete his evaluation.

The second question, however, is as Dr. Rosenberg concedes a hypothetical one. WDPR argues the discovery of child pornography on Plaintiff Acevedo’s phone would reasonably cause Acevedo stress due to the potential risks of criminal prosecution, and social and moral implications. (Moving Papers, 17:7-11.) WDPR also adds that refusing to answer the second question deprives Dr. Rosenberg of relevant follow-up questions such as asking about lack of romantic relationships, social isolation, low self-esteem, anxiety, and depression. The Court disagrees. Although Acevedo does not mention his Fifth Amendment Right against self-incrimination, the Court is keenly aware of that right and the Court’s duty to enforce it should it be invoked. Also, Moving Defendant has offered no reason why Dr. Rosenberg could not have asked the follow up questions regarding lack of romantic relationships, social isolation, low self-esteem, anxiety, and depression without the answer to a hypothetical. Accordingly, Acevedo need not answer the second question and is free to invoke his Fifth Amendment Right should he so choose.  

               ii.          Relevance to Moving Defendant’s After-Acquired Evidence Defense

               With regard to Moving Defendant’s after-acquired evidence defense, the Court finds the  questions are relevant.

            “The doctrine of after-acquired evidence shields an employer from liability or limits available relief where, after a termination, the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event. (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4^th 1156, 1172-1173.) The doctrine has been summarized by the United States Supreme Court: “Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge. [Citing to McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, 362-363.]”

Here, if Acevedo did in fact have pornography on his phone, it may bolster  Moving Defendant’s defense that Acevedo was terminated for showing pornographic material while at work. Although this was alleged at the time of the termination, evidence of pornography existing on Acevedo’s device bolsters the defense.   Also, if child pornography was found after Acevedo’s termination, evidence of child pornography existing on Acevedo’s device bolsters the defense.  

The court, however, believes that a mental examination is to determine a party’s  emotional distress, if any.  The court does not believe that it is appropriate for Dr. Rosenberg  to use his mental examination to conduct discovery for the purpose of determining if Defendant can establish the affirmative defense of after-acquired evidence. 

b.     The Court Order and Sanctions

Finally, the Court shall address the arguments about whether, by instructing Plaintiff Acevedo to refuse to answer the questions, Plaintiff’s counsel violated the March 29, 2024 Court Order (the Order). The Order states clearly that the Court will not substitute its judgment for that of the medical expert. However, in discovery motions that request the Court’s interventions, the Court is guided by the discovery standard outlined in Code Civ. Proc. §2017.010 which allows for “any party to obtain discovery on any matter, not privileged, that is relevant to the subject matter…” (Emphasis added.) Consequently, if relevance or the lack thereof is grounds for refusal to answer a question, the Court may assert its own expertise. As stated above, the first question by Dr. Rosenberg is relevant for purposes of Acevedo’s emotional state and as to Moving Defendant’s after-acquired evidence defense, therefore Plaintiff Acevedo can and should answer the question. However, the second hypothetical question lacks the requisite relevance, and therefore need not be answered by Plaintiff Acevedo. Accordingly, the Court finds no sanctionable violation at this time.     

CONCLUSION

In conclusion, Disney Parks and Resorts U.S., Inc.’s (Moving Defendant) Motion to

Compel Plaintiff Manuel Acevedo to Answer Additional Questions at A Further Mental Examination and Request for Sanctions is DENIED.