Judge Elaine W. Mandel, Case Number: 19STCV36319, Date: 2023-07-21 Tentative Ruling

Judge: Elaine W. Mandel, Case: 19STCV36319, Date: 2023-07-21 Tentative Ruling

Case Number: 19STCV36319 Hearing Date: September 20, 2023 Dept: P

Tentative Ruling

D.E. v. Regents of the University of California, Case No. 19STCV36319

Hearing Date September 20, 2023

Defendant Regents’ Motion to Compel Further Responses to Deposition Questions; Regents’ Motion to Quash PMQ Deposition Notice

Plaintiff D.E., a UCLA graduate student, alleges defendant Regents discriminated against her based on her disabilities, which include ADHD and migraines, by failing to provide reasonable accommodations. Defendant D.E. alleged she saw a physician for anxiety and other symptoms caused by the Regents’ discrimination. The Regents allege that during her deposition D.E. refused to identify the physician she saw for her anxiety and mental/emotional distress and refused to answer about whether she had treatment for these symptoms before attending UCLA. The Regents move to compel answers to those deposition questions.

A patient has the constitutional and statutory right to refuse to disclose communications with a psychotherapist. Cal. Evid. Code §1014. A party claiming mental and emotional distress damages places their emotional state in controversy, making it subject to discovery. Vinson v. Superior Court (1987) 43 Cal.3d 833, 839. A plaintiff does not ipso facto put their mental condition at issue by seeking damages for pain and suffering in a personal injury action. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1016.

D.E.’s first amended complaint alleges “severe emotional distress,” “anguish, pain, humiliation, indignity,” includes a cause of action for intentional infliction of emotional distress, and seeks damages for “physical, mental, and emotional distress.” ¶¶39, 113, 126, 139, 147 and 171.

Regents cite Vinson, arguing that, via these allegations, D.E. put her mental and emotional state at issue. D.E. cites Davis, arguing she did not waive her §1014 privilege merely by seeking damages for pain and suffering. Davis is distinguishable; there the court rejected defendant’s argument that plaintiff put their mental state at issue merely by filing a personal injury claim seeking general damages related to pain and suffering. D.E., unlike plaintiff Davis, seeks specific damages for “emotional distress,” and “humiliation.”

Davis acknowledged that when plaintiff’s pleading clearly places a mental condition at issue, the §1014 psychotherapist/patient privilege is waived. Davis, supra, 7 Cal. App.4th at 1017. This aligns with Vinson. D.E. explicitly seeks damages for mental and emotional harm. Under both Davis and Vinson, she has put her mental condition at issue and waived her §1014 privilege. GRANTED.

Regents’ Motion to Quash PMQ Deposition Subpoena

The Regents move to quash 43 categories of requests from D.E.’s PMQ notice on the grounds that they seek information related to how the University’s policies affect students other than D.E. The Regents argue these requests are only relevant to a hypothetical disparate impact claim, which is not pleaded in D.E.’s first amended complaint.

Disparate treatment and disparate impact claims are different theories of liability which must be specifically alleged. Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 889.

D.E. does not allege disparate impact; the FAC alleges disparate treatment, claiming D.E. was harmed by the Regents’ intentional discrimination, retaliation and failure to provide accommodations. FAC ¶110, 120-125, 131-137, 143-146. No portion of the FAC alleges a facially neutral policy that disproportionately impacts disabled individuals. Therefore, discovery will not be permitted to the extent that it is only relevant to a disparate impact claim.

In opposition, D.E. argues evidence of disparate impact may be probative of her disparate treatment claim. The court agrees. Although disparate impact is not pleaded in the FAC, California courts acknowledged evidence of disparate impact “may be probative of intentional discrimination[.]” Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854.

D.E. seeks evidence related to the impact of the Regents’ policies on other disabled students, which could bolster D.E.’s claim that she was also injured by the same policies. Given the wide scope of permitted discovery, D.E. may seek evidence related to disparate impact. Such evidence will only be admissible to the extent it may support D.E.’s disparate treatment claim, not to support an unpleaded claim for disparate impact. DENIED.