Judge Jill Feeney, Case 19STCV18842 2023-02-23 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Bolanos seeks a court order compelling Defendants’ expert to produce materials he relied upon during his medical examination of Elizabeth Bolanos. Defendants seek copies of tests, Bolanos’ answers, interpretive materials, raw data, and scoring sheets. Bolanos argues that the Court is empowered to compel Defendants to release these materials under Carpenter v. Sup. Ct. (2006) 141 Cal.App.4th 249, 274. Bolanos also argues that Defendants cannot both assert the materials are privileged and also rely on them to form opinions at trial.

Defendants argue that there is no statute requiring the production of raw data from psychological testing. Defendants also argue that Dr. St. Martin cannot produce the materials due to ethical issues, citing California Code of Regulations, Title 16, Section 1396.3.

“If a deponent fails to answer any question or to produce any document, electronically stored information,¿or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., Section 2025.480(a); see Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 n. 3 [the only proper basis to instruct a deponent to not answer a question is an objection based upon a privilege or manifestly irrelevant questions or questions designed only to harass.]) “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc., section 2025.480(i).)¿Failure to obey an order may be considered contempt of court and could subject a party to the action to issue, evidentiary, or terminating sanctions as well as monetary sanctions. (Code Civ. Proc., section 2025.480(k).) “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration.”¿(Code Civ. Proc., section 2025.480(b).)

The Court shall impose sanctions on the party that unsuccessfully makes or opposes the motion unless it finds that the losing party acted with substantial justification or other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., Section 2025.450, subd. (g)(1), 2025.480, subd. (j).

Per Code of Civil Procedure Section 2032.610, a party that submitted to a mental examination has the option to demand that the party that requested the examination produce “[a] copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.” (Code Civ. Proc., § 2032.610, subd. (a).)

In Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, the court determined that a trial court has discretion to require an examiner to produce the raw data from psychological testing, but not the obligation to do so. The court ruled that a trial court should consider the ethical issues relating to the production of the raw data in determining whether to order its production. (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 273.)

California Code of Regulations, Title 16, Section 1396.3 provides, “A psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.” (Cal. Code Regs., Title. 16, Section 1396.3.) Thus, disclosure of psychological test material could be cause for license revocation for St. Martin.

If possible, a court must interpret California Code of Regulations, Title 16, Section 1396.3 and Code of Civil Procedure section 2032.610 to give effect to both. (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist.¿(1989) 49 Cal.3d 408, 419-420.)

Here, Bolanos argues that she would be prejudiced if she does not have access to the testing materials because she will be unable to properly evaluate and cross-examine St. Martin. Bolanos cites Carpenter, which provides that the court has the discretion to compel production of the testing materials. Bolanos also cites to a number of federal cases in support of her argument. Federal cases, whether published or unpublished, constitute only persuasive authority. (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1714.)

A court has the discretion to require an examiner to produce testing materials and in exercising that discretion, the court should consider the ethical issues relating to the production of these materials in determining whether to order its production. (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 273.)

Here, the Court declines to exercise its discretion to order the production of these materials to counsel given the ethical and practical implications of the disclosure of test materials that are repeatedly used to counsel. That said, the Court would have ordered the production of the requested materials to another licensed psychologist retained by Bolanos had Plaintiff so requested.