Judge: Daniel S. Murphy, Case: 21STCV10900, Date: 2023-02-01 Tentative Ruling

Case Number: 21STCV10900    Hearing Date: February 1, 2023    Dept: 32

BACKGROUND

            On March 22, 2021, Plaintiff Randall Stewart initiated this action against Defendants Los Angeles Police Department, City of Los Angeles, County of Los Angeles, and Bryan Dameworth. The operative Second Amended Complaint, filed January 18, 2023, alleges (1) battery, (2) assault, (3) battery by peace officer, (4) negligent hiring, (5) negligence, (6) negligent use of deadly force, (7) intentional infliction of emotional distress, and (8) violation of the Bane Act. Plaintiff alleges that he was attending a protest on May 30, 2020, in Los Angeles when Officer Dameworth fired a rubber bullet, striking him. (SAC ¶¶ 10-12.) The incident allegedly left Plaintiff with severe injuries and continued pain and suffering (Id., ¶ 30.)

            On December 30, 2022, Defendant City of Los Angeles filed the instant motion to compel Plaintiff’s mental examination. There is no dispute over Defendant’s right to take Plaintiff’s mental examination, and the parties had previously stipulated to the examination, with the test data provided to both sides’ attorneys under a protective order. Subsequently, Defendant’s expert, Dr. David Lechuga, informed Defendant that he could only provide the test data to other experts and not to Plaintiff’s counsel. Plaintiff declined to deviate from the stipulation. This motion followed. Defendant moves to compel the examination with the test data provided only to Plaintiff’s experts if requested and not to either side’s counsel.

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

            There is no dispute that Plaintiff has placed his mental condition in controversy. Therefore, there is good cause for the examination. The only dispute is whether the test data should be provided to Plaintiff’s counsel.

            Defendant contends that the test data should only be provided to Plaintiff’s experts because providing the data to counsel would violate the ethical principles of psychologists. Dr. Lechuga avers that “[a]udio recording of the test procedures is considered raw test data and may only be sent to another psychologist who is qualified to interpret the raw test data.” (Lechuga Decl. ¶ 5.) Dr. Lechuga further avers that “[s]ending such raw test data or recordings to non-psychologists of the testing procedures would potentially place my psychology licenses in jeopardy before the Board of Psychology in the State of California.” (Id., ¶ 6.)

            Defendant cites to the Ethical Principles of Psychologists and Code of Conduct, which states that psychologists may refrain from releasing test data to protect a patient from substantial harm or misuse of the data. (Principles, Section 9.04.) According to the Principles, psychologists must also make reasonable efforts to maintain the integrity and security of test materials. (Id., Section 9.11.) Defendant also cites to the California Code of Regulations, which defines unprofessional conduct as reproduction or public dissemination of any psychological test in a way that invalidates the test. (Cal. Code Regs. Tit. 16, § 1881(l).) The Code requires a licensee to limit access to such tests to persons with professional interest who are expected to safeguard their use. (Ibid.)

            Defendant does not adequately articulate how providing the test results to Plaintiff’s counsel violates these rules. The results of mental exams are regularly provided to counsel, and it would be practically impossible for counsel to prepare for the case without such information. Defendant cites no binding legal authority limiting mental exam data to experts. Providing the data to counsel for the limited purposes of this litigation under a protective order sufficiently maintains the security of the information. There is no indication that doing so would cause substantial harm to Plaintiff or misuse of the data. Plaintiff himself is the one requesting disclosure of the information to his own attorneys. The protective order prohibits public dissemination of the data, and the attorneys in this case are persons with professional interest because they are involved in litigation where the patient’s mental condition is at issue. There is no indication that either counsel cannot be expected to safeguard the use of test data.  

CONCLUSION

            Defendant’s motion to compel Plaintiff’s mental examination is GRANTED. Test data shall be provided to counsel for both sides. If Dr. Lechuga cannot abide by this order, Defendant must retain another expert to conduct the examination.