Judge: Elaine Lu, Case: 19STCV34805, Date: 2023-02-08 Tentative Ruling

Case Number: 19STCV34805    Hearing Date: February 8, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On September 30, 2019, Plaintiff Ana Rubio (“Plaintiff”) filed the instant employment action against defendants Partnership Staffing Solutions dba PSS, Saputo Cheese USA, Inc. (“Saputo”), Saputo Dairy Foods USA, LLC[1], and Abel Duron (“Duron”).  The complaint asserts five causes of action for (1) Gender Discrimination, (2) Sexual Harassment/Hostile Work Environment, (3) Failure to Prevent Sexual Harassment/Hostile Work Environment, (4) Retaliation, and (5) Wrongful Termination.  On December 12, 2019, Plaintiff filed an amendment to the complaint correcting the name Partnership Staffing Solutions dba PSS to Partnership, Inc. dba Partnership Staffing Solutions, Inc. dba PSS.

            On January 17, 2023, Saputo filed the instant motion to compel Plaintiff’s mental examination.  On January 26, 2023, Plaintiff filed an opposition.  On February 1, 2023, Defendant Saputo filed a reply.

Allegations of the Operative Complaint

            The Complaint alleges that:

            Defendants PSS and Saputo employed Plaintiff from September 2, 2016 until October 2, 2017 as a warehouse packer.  (Complaint ¶ 11.) 

            “Beginning in or around April 2017, [Plaintiff] began being subjected to sexual harassment by her co-worker, Mr. Abel Duron. Mr. Duron would regularly make inappropriate comments to and physical contact with [Plaintiff], such as moving his body too closely behind [Plaintiff] and touching her backside with his erect penis while telling her how ‘pretty’ she was.”  (Id. ¶ 12.)  Despite the constant objections from Plaintiff, Duron’s harassment of Plaintiff continued.  (Id. ¶ 13.) 

            “Towards the end of April, [Plaintiff] had to take time off of work for to care for her terminally ill father in Mexico. Upon informing Lydia in Human Resources, Lydia advised her ‘if you leave, you come back at square one.’”  (Id. ¶ 14.)  “End of May 2017, [Plaintiff]’s father passes away and she request[ed] time to attend her father’s funeral.”  (Id. ¶ 15.)

            “In August 2017, after months of being subjected to inappropriate behavior by Mr. Duron, and Mr. Duran physically assaulting and grabbed [Plaintiff]’s buttocks, [Plaintiff] proceeded to complain to Human Resources about the harassment she had been subjected to over the last 4 months. However, again no corrective actions were taken by Defendants.”  (Id. ¶ 16.)

            “In September 2017, [Plaintiff] applied for an internal position. However, she was told she was not qualified because she could not get along with her coworkers.”  (Id. ¶ 17.)  “Shortly thereafter, Ms. Rubio was terminated for ‘being with the agency too long’ without any incidents or further explanation.”  (Id. ¶ 18.)

Legal Standard

            Pursuant to Code of Civil Procedure section 2032.310, “[i]f any party desires to obtain discovery by … a mental examination, the party shall obtain leave of court.”  (CCP § 2032.310(a).)  “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.”  (CCP § 2032.310(b).)

Meet and Confer

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.) 

            Here, Defendant Saputo has adequately met and conferred.  (Black Decl. ¶¶ 6-11, Exhs. D-H.) 

Discussion

            Defendant Saputo seeks to compel the mental examination of Plaintiff.  In opposition, Plaintiff contends that the examination is unnecessary, and the proposed examination is overbroad. 

Good Cause Exists for the Sought Examination

            In opposition, Plaintiff contends that there is not a sufficient basis for a mental examination because Defendant Saputo has already obtained medical records and has examined Plaintiff during deposition.   The Court disagrees.

            Here, with each cause of action, Plaintiff alleges that she “has suffered humiliation, embarrassment, mental and emotional distress and discomfort, all to her damage in an amount proven at trial.”  (Complaint ¶¶ 28, 36, 44, 53, 60.)  Further, Plaintiff has stated in response to discovery requests that the mental and emotional distress damages are ongoing.  (Black Decl. ¶ 4, Exh. B at Response to Form Interrogatory 212.3.)  As Plaintiff has claimed both emotional distress damages and that the damages are ongoing, good cause had been shown.  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840-841.)  Moreover, Plaintiff refused to stipulate under Code of Civil Procedure section 2032.320(c) and disclaim any unusual mental or emotional suffering and agree not to introduce expert testimony on these issues at trial.  Thus, Defendant Saputo must presume that the emotional suffering is unusual, and that Plaintiff seeks to introduce expert testimony on these issues.  Therefore, good cause has been shown. 

The Proposed Examination is not Overbroad

            Here, the proposed examination seeks a mental examination performed by Praveen R. Kambam, M.D., a licensed physician whose specializes in clinical and forensic psychiatry and Plaintiff would be provided a Spanish language interpreter at Saputo’s cost.  (Kambam Decl. ¶ 1.)  The examination would take place on February 23, 2023 and last for up to eight hours.  The examination would consist of a complete psychiatric history, oral mental status examination, and administration of standard psychiatric tests, specifically the Trauma Symptom Inventory-2 (TSI-2); and Minnesota Multiphasic Personality Inventory-3 (MMPI-3) or Minnesota Multiphasic Personality Inventory-2 (MMPI-2).  Finally, the proposed order states that “[w]hile the examination may not include inquiry into Plaintiff’s sexual history, the examination may include examination of Plaintiff’s major/significant relationships, any history of abuse or domestic violence, status of current/recent relationships, and significant/adverse events in such relationships, per usual and customary psychiatric practices.”  (Proposed Order at #5.)

            Dr. Kambam provides a detailed copy of his curriculum vitae denoting that he has been a licensed physician since 2005 with numerous Board Certifications including a Certification in the Subspecialty of Forensic Psychiatry by the American Board of Psychiatry and Neurology.  (Kambam Decl. ¶ 1, Exh. A.)  Dr. Kambam states that the purpose of the examination is to “examine (1) the emotional and mental injuries and manifestations [Plaintiff] has alleged (i.e., severe depression and anxiety, difficulty sleeping, feelings of shame, social isolation, embarrassment, and worry); and (2) the potential cause(s) of these conditions. In order to adequately examine and explore these areas, the usual and customary practice is to conduct a comprehensive psychiatric examination. By definition, such an examination includes a complete psychiatric history.”  (Kambam Decl. ¶ 4.) 

            Dr. Kambam explains that “[i]nquiry into a person’s psychiatric history is fundamental to understanding both present manifestations of symptoms, and, more importantly, their causes. The cause(s) of a person’s present mental state can trace back to the early stages of a person’s development and growth and can further be influenced by various events and experiences throughout their life. Thus, in order to understand a person’s present mental state and the causes of same, the usual and customary practice is to examine a person’s full psychiatric history—this can encompass a range of areas and topics dating back to the early life stages and continuing to the present day.”  (Kambam Decl. ¶ 5.)  Thus, Dr. Kambam notes that “[i]f [he] [is] broadly prevented from asking about the objected-to topics (i.e., family history, educational background, work history, social development history, and sexual history), [his] determination and opinion on the causes of Plaintiff’s present mental condition would be limited, insofar as [he] would not be able to ask about topics relevant to her present mental state, causation, prognosis, and treatment.”  (Kambam Decl. ¶ 6.)  As to sexual history, Dr. Kambam states that he “do[es] not intend to inquire into her “sexual history” per se. Rather, [he] would only inquire into major/significant relationships, any history of abuse or domestic violence, status of current/recent relationships, and significant/adverse events, per usual and customary psychiatric practices. [Dr. Kambam] [is] primarily interested in status, interpersonal functioning, and trauma/stressors in these relationships. This is because such conditions, in [his] opinion and experience, would likely contribute to Ms. Rubio’s present mental state and prognosis.”  (Kambam Decl. ¶ 7.)  Dr. Kambam further explains that based on his experience that administration of two tests will be helpful and appropriate—the Trauma Symptom Inventory-2 (TSI-2); and the Minnesota Multiphasic Personality Inventory-3 (MMPI-3) or Minnesota Multiphasic Personality Inventory-2 (MMPI-2).  Thus, the topics sought by Defendant Saputo for mental examination are relevant to examining Plaintiff’s ongoing mental distress from the conduct alleged in the complaint.

            Dr. Kambam also explains that the 8 hours for examination are necessary because based on his experience a comprehensive forensic psychiatric evaluation typically takes several hours and will take even longer as Plaintiff only speaks Spanish and will need a Spanish Interpreter.  (Kambam Decl. ¶ 8.)

            In opposition, Plaintiff contends that the proposed examination is overbroad as it improperly invades Plaintiff’s privacy.  In support of this contention, Plaintiff heavily relies on Tylo v. Superior Court (1997) 55 Cal.App.4th 1379.  However, Tylo is irrelevant to the instant motion.  Tylo involved a motion to compel the plaintiff to respond to questions at a deposition.  Moreover, Tylo predates the Supreme Court’s decision in Williams v. Superior Court (2017) 3 Cal.5th 531 which sets the standard for privacy objections under the California Constitution.

            The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.”  (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”].)

            As the Supreme Court has “previously observed, the right of privacy extends to sexual relations (Vinson v. Superior Court, supra, 43 Cal.3d at p. 841) and medical records (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.).”  (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.)  Similarly, the constitutional right to freedom of association requires protection of a person’s membership in associations, whether they pertain to religious, political, economic, or even purely social matters.  (Britt v. Superior Court (1978) 20 Cal.3d 844, 852; see also Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 71.)

            In establishing a privacy interest “the burden [is] on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.”  (Williams, supra, 3 Cal.5th 531, 557.)  “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.”  (Ibid.)

            Here, the Supreme Court has explained in near identical circumstances as the instant action with regard to claims of ongoing mental ailments with regard to a mental examination, “Plaintiff's present mental and emotional condition is directly relevant to her claim and essential to a fair resolution of her suit; she has waived her right to privacy in this respect by alleging continuing mental ailments.”  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)  However, the Supreme Court found that in Vinson specifically, the defendant failed to show good cause as to why such evidence was relevant.  (Vinson, supra, 43 Cal.3d at pp.843-844.)  In contrast, in the instant action Defendant Saputo has presented evidence as to why the sought areas are relevant in Dr. Kambam’s declaration.  (Kambam Decl. ¶¶ 6-7.)  Moreover, such evidence is unopposed by Plaintiff who does not even address Dr. Kambam’s assertions in the opposition papers.

            Plaintiff also claims that the time should be limited to four hours but fails to explain why the proposed eight hours would be unreasonable.  Nor does Plaintiff address Dr. Kambam’s estimation that the examination will take longer due to the need for a translator.  Thus, the Court has no reason to conclude that the proposed eight hours is unreasonable or that the four hours would be more reasonable under the circumstances.

            Finally, Plaintiff seeks to have representation present, and the proceedings recorded under Code of Civil Procedure sections 2032.510 and 2032.530.  While there is a right to have the proceeding recorded under Code of Civil Procedure section 2032.530 – which Defendant Saputo is not contesting – there is no statutory right to have counsel at a mental examination.  Code of Civil Procedure section 2032.510 only provides that Counsel shall be permitted to attend and observe physical examinations not mental examinations.  (CCP § 2032.510(a).)  Rather, the presence of any counsel at such examinations is a matter of discretion.  (Vinson, supra, 43 Cal.3d at p.846 [“In light of their broad discretion in discovery matters [Citation], trial courts retain the power to permit the presence of counsel or to take other prophylactic measures when needed.”].)  In fact, “in most cases, counsel should not be permitted to attend a mental examination, even though trial courts retain the discretion to allow counsel's presence in exceptional cases.”  (Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 747 [Italics Added].)  This is because “absent evidence to the contrary (and there is none), it must be presumed that the examiners will act appropriately.”  (Toyota Motor Sales, U.S.A., Inc. v. Superior Court (2010) 189 Cal.App.4th 1391, 1397.) 

            Here, Plaintiff has failed to present any evidence that would warrant the exceptional circumstances required to warrant the presence of counsel for a mental examination. In sum, there is good cause for the mental examination and the scope of examination sought.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Saputo Cheese USA, Inc.’s motion to compel the mental examination of Plaintiff is GRANTED.

1.      The mental examination will be performed by Praveen R. Kambam, M.D., a licensed physician whose specialty is clinical and forensic psychiatry and by such assistants and colleagues as Dr. Kambam may call upon to assist or to advise him in the examination.

2.      A Spanish language interpreter will be provided for the examination at Saputo’s cost.

3.      The examination will take place at 8075 W. 3rd Street, Suite 306, Los Angeles, CA 90048 on February 23, 2022, beginning at 9:00 a.m., and lasting for up to eight (8) hours, excluding breaks.

4.      The examination will consist of an interview and comprehensive psychiatric examination, which will include a complete psychiatric history, oral mental status examination, and administration of standard psychiatric tests, specifically the Trauma Symptom Inventory-2 (TSI-2); and Minnesota Multiphasic Personality Inventory-3 (MMPI-3) or Minnesota Multiphasic Personality Inventory-2 (MMPI-2) (i.e., only the MMPI-2 or MMPI-3 may be administered, but not both, along with the TSI-2). The scope of the examination will be to ascertain (1) the extent and character of the alleged emotional and mental injuries Plaintiff has alleged in her Complaint, written discovery responses, and during her deposition, which she claims are continuing; (2) the potential cause(s) of Plaintiff’s emotional distress and mental difficulty.

5.      While the examination may not include inquiry into Plaintiff’s sexual history, the examination may include examination of Plaintiff’s major/significant relationships, any history of abuse or domestic violence, status of current/recent relationships, and significant/adverse events in such relationships, per usual and customary psychiatric practices

            Moving Party is to give notice and file proof of service of such.

DATED:  February 8, 2023                                        _____________________________

                                                                                                  Elaine Lu

                                                                                                  Judge of the Superior Court