Judge: Joseph Lipner, Case: 21STCV42325, Date: 2023-09-26 Tentative Ruling

Case Number: 21STCV42325    Hearing Date: December 14, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants SP Plus Corporation (“SP”) and Roberto Pacheco (“Pacheco”) (collectively, “Defendants”) move for an order compelling the independent medical examination of Plaintiff Nadia Huijara Espino (“Plaintiff”).

Defendants’ motion is DENIED.

Background

This case arises from Plaintiff’s employment with SP. Plaintiff alleges that she was a victim of workplace harassment and discrimination based upon her medical disabilities, sex/gender and religion. Plaintiff also claims that was wrongfully terminated and that she suffered embarrassment, humiliation, and emotional distress.

On November 16, 2021, Plaintiff filed this action against Defendants SP Plus Corporation, her employer, and affiliated individuals Ernesto Cerna and Roberto Pacheco, alleging twelve causes of action: (1) disability discrimination; (2) religious discrimination; (3) failure to reasonably accommodate a disability; (4) failure to engage in an interactive accommodation process; (5) violation of and retaliation under the Family Rights Act (CFRA); (6) failure to prevent retaliation; (7) harassment; (8) retaliation under the Fair Employment and Housing Act (FEHA); (9) failure to prevent harassment [second count]; (10) wrongful termination; (11) declaratory relief; and (12) injunctive relief.

Defendants previously moved for an order compelling Plaintiff’s medical examination. The Court denied that motion without prejudice on September 26, 2023 on the bases that Defendants had not adequately specified what the substance of the examination would be and Defendants had not adequately identified good cause for the examination apart from the allegations in Plaintiff’s Complaint.

Defendants filed this motion on October 27, 2023. Plaintiff filed an opposition and Defendant filed a reply.

Legal Standard

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may, according to certain limits, demand one physical examination. (Code Civ. Proc., § 2032.220, subd. (a).) “Where any party seeks to obtain discovery ... by a mental examination, the party shall obtain leave of the court.” (Code Civ. Proc., § 2032.310, subd. (a), italics added.) The motion for a mental examination must 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.” (Code Civ. Proc., § 2032.310(b).) It must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2032.310(b).)

Any party may obtain discovery by mental examination of another party’s mental condition if it is in controversy in the action. (Code Civ. Proc., § 2032.020.) However, the court shall grant a motion for a mental examination only for good cause shown. (Id., § 2032.320, subd. (a).) To establish “good cause,” the moving party must produce specific facts justifying the discovery and that the subject matter is relevant to the action. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840 (Vinson).) “Good cause” may be found where plaintiff claims additional injuries, or that his or her condition is worsening, or if considerable time has elapsed since the incident underlying the complaint. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1546.)

One party’s unsubstantiated allegation cannot put the mental state of another in controversy. (Id. at 839.) “While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.” (Id. at p. 840.)

If a party stipulates that no claim is being made for mental or emotional distress over and above that usually associated with the physical injuries claimed and that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages, a mental examination may only be ordered on a showing of exceptional circumstances. (Code Civ. Proc., § 2032.320, subds. (b)-(c).) The And the party who seeks to compel a mental examination bears the burden to specify the diagnostic tests and procedures to be conducted. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 267.)

Discussion

          Defendants request that the be performed by Dr. Praveen R. Kambam. Defendants request that the examination occur within 30 days for up to 7 hours. Defendants request that the examination be conducted at Dr. Kambam’s office located at 8075 West 3rd Street, Suite 306, Los Angeles, CA 90048. Defendants request that Dr. Kambam and Plaintiff be allowed to audiotape the examination.

Defendants submit Dr. Kambam’s curriculum vitae. (Inouye Decl., ¶ 11, Exhibit B.)

Plaintiff states that she exclusively speaks Spanish. Defendants have agreed to provide a Spanish version of the written questions and a certified interpreter for the oral questions pursuant to Evidence Code section 755.5(a).

As to scope, Defendants specify in their motion that “[t]he proposed examination involves a detailed interview, mental status examination, and generally accepted standardized psychiatric testing and screening assessment.” (Motion at p. 9:18-20.) “The mental examination may also include written psychological testing, including the MMPI-III and TSI-II (trauma symptom inventory).” (Motion at p. 9:25-26.)

Defendants request that the scope of the examination cover the origin, nature, and severity of Plaintiff’s alleged emotional distress and mental health injuries. The Court previously rejected Defendants’ request, with the exception of the MMPI-III and TSIII, as improperly vague because it could include virtually any type of questioning. Here, Defendants do not constrain their request to those two tests, but rather offer those tests as examples. Thus, Defendants’ request is not actually narrowed by this specification. This is a basis for denial of the motion.

Defendants further assert that Dr. Kambam should be permitted to ask questions regarding Plaintiff’s relationship history and marital history and whether Plaintiff has been a victim of domestic abuse or other physical violence. Defendants also assert that “Dr. Kambam does not anticipate the need to explore Plaintiff’s sexual history per se, but this issue may potentially become relevant depending upon Plaintiff’s responses to questioning.” (Reply at p. 7:5-7.)

These requests facially invade Plaintiff’s zone of sexual privacy laid out in Vinson v. Superior Court (1987) 43 Cal.3d 833, 835. In Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 797, two dependent minors brought suit on the basis that they had been raped and assaulted by their foster mother’s son. (Id. at p. 797.) The Defendants requested discovery into the nature of a plaintiff’s past pregnancy, whether the pregnancy was consensual, and whether a plaintiff had been had been sexually assaulted in any other instances. (Id. at pp. 798-799.) The defendants also sought a mental evaluation and refused to stipulate that it would not inquire into the plaintiffs’ sexual history. (Ibid.) The court explained that “[t]he mere fact that a plaintiff has initiated an action seeking damages for extreme mental and emotional distress arising out of conduct of a sexual nature does not ipso facto provide ‘good cause’ for discovery of other sexual conduct.” (Id. at p. 801, citing Vinson, supra, 43 Cal.3d at pp. 841-842.) The Court denied the motion for a mental examination because “no declaration of a mental health professional was proffered to establish the relevance of other sexual conduct, whether before the incidents alleged or after.” (Id at p. 803.)

Here, Defendants have not proffered a declaration of a mental health professional showing why the specific inquiries which Defendants which to conduct into Plaintiff’s prior or subsequent sexual history are relevant. The motion is therefore denied on this basis as well.