Judge Kerry Bensinger, Case Number: 21STCV05234, Date: 2024-08-01 Tentative Ruling

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This is an employment action. Plaintiff Joanna Elliott was employed at Pepperdine University. On February 9, 2021, Plaintiff filed this action against Defendants, Pepperdine University; Wave Enterprises, Inc.; Wave Services, Inc.; and Wave Property, Inc., for harassment, retaliation, discrimination, and wrongful termination. As relevant here, Plaintiff alleged she “suffered and will suffer psychological and emotional distress, humiliation, and mental and physical pain and anguish” as a consequence of Defendants’ conduct. Plaintiff also testified that she saw a doctor for trauma/PTSD issues she experienced during her employment.

On February 27, 2024, Defendants attempted to meet and confer with Plaintiff regarding stipulating to a psychiatric independent medical evaluation (IME). Plaintiff did not respond.

On March 7, 2024, Defendants again inquired with Plaintiff whether she would stipulate to a psychiatric IME. In response, Plaintiff requested a draft stipulation. Defendants obliged. The draft stipulation proposed a mental examination with Dr. Stephanie Peters at 3415 South Sepulveda Blvd., Suite 1100, Los Angeles, CA 90034, or alternatively via Zoom, to begin at 10:00 a.m., and to continue for no more than six 6 hours with appropriate breaks for lunch and rest. The draft stipulation further provided that the examination would consist of (1) an interview of Plaintiff; (2) psychological mental status examination; (3) screening cognitive testing; and (4) testing. The draft stipulation also described the topics of the interview and the specific testing to be conducted. Further, the draft stipulation stated that the examination will not involve a physical examination or any painful, protracted, or unduly invasive procedures.

On March 21, 2024, after not receiving a response, Defendants inquired as to the status of the draft stipulation. Plaintiff did not respond.

On April 22, 2024, Defendants filed this motion to compel Plaintiff’s IME. Defendants do not seek sanctions.

Absent agreement of the parties, a mental examination requires leave of court. (Code Civ. Proc., § 2032.310.) The court may grant leave to take a mental examination “only for good cause shown.” (Code Civ. Proc., § 2032.320.) “A motion for an examination…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.” (Code Civ. Proc., § 2032.310, subd. (b).) “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc., § 2032.320, subd. (d).)

There is no dispute that Plaintiff has placed her mental state in controversy. Indeed, Plaintiff does not oppose submitting to an IME[1] nor take issue with the qualifications of Dr. Peters. (See Opp., pp. 2:5-6, 3:26-4:2.) Rather, Plaintiff opposes the motion on the ground that Defendants have failed to specify the time, place, manner, conditions, scope, and nature of the examination, as well as the diagnostic tests and procedures to be conducted. (Opp., p. 3:15-18.)

Plaintiff’s procedural challenge lacks merit. Defendants made multiple attempts to meet and confer with Plaintiff prior to the filing of this motion. (See Chang Decl., ¶¶ 6-7, Ex. 3.) At Plaintiff’s request, Defendants provided a draft stipulation for the IME which provided the very information that Plaintiff cites as the basis for her opposition. The draft stipulation provides:

1. Plaintiff will appear for a mental examination with Dr. Stephanie Peters. A copy of Dr. Peters’ CV is attached hereto as Exhibit 1.

2. The examination will take place on _________, start at 10:00 a.m. and continue for no more than six (6) hours, with appropriate breaks for lunch and rest times, at 3415 South Sepulveda Blvd., Suite 1100, Los Angeles, CA 90034, or in the alternative, can be conducted via zoom.

3. The examination will consist of: (1) an interview of Plaintiff; (2) psychological mental status examination; (3) screening cognitive testing; and (4) testing, as outlined in paragraph 9 below. The scope of the examination will be limited to the mental and/or emotional conditions placed in controversy by Plaintiff in this litigation.

4. The examination shall consist of a clinical interview with Plaintiff to discuss her clinical situation within the scope of her condition in controversy. The psychological interview may include covering background information; the reported circumstances of onset of the alleged emotional injury or injuries; and how those symptoms have unfolded over time to the present, including any other assessments and treatment. It may also include an inquiry into Plaintiff’s including current and prior psychiatric treatment within the last ten (10) years.

5. The only written documents that Plaintiff will complete will be the actual written testing documents. Plaintiff will need to fill out intake sheets or background information forms.

6. The examination will not involve a physical examination or any painful, protracted, or unduly invasive procedures.

7. The entire psychological examination will last no more than six hours, excluding breaks. If requested by Plaintiff or Dr. Peters, a lunch break of approximately 45 minutes may occur.

8. Dr. Peters will conduct psychological testing of Plaintiff, which may take approximately 2 to 2.5 hours. The proposed tests will include some or all of the following: the Minnesota Muliphasic Personality Inventory – 2 (MMPI-2), the Beck Depression Inventory-II and the Beck Anxiety Inventory.

9. The examination will be audiotaped pursuant to California Code of Civil Procedure section 2032.530. Plaintiff will also be permitted to audio record the interview. Dr. Peters will provide a copy of the audio recording to Plaintiff’s counsel no more than 10 days after completion of the examination. No video recordings will be allowed.

10. Only Dr. Peters and Plaintiff will be present during the examination. No other individuals (including Plaintiff’s counsel, Defendants’ counsel, or any other representative of Dr. Peters) may be present (either physically, via phone or remote appearance) during the examination.

11. Defendants’ counsel will provide a copy of this fully-executed stipulation to Dr. Peters prior to her examination of Plaintiff. Dr. Peters is required to read the entire stipulation prior to her examination of Plaintiff.

12. A copy of Dr. Peters’ report shall be provided to Plaintiff’s counsel pursuant to California Code of Civil Procedure section 2032.610.

13. Plaintiff and Defendants, in good faith, will agree to a place for the examination to take place on a mutually agreeable date. Plaintiff will not cancel the agreed upon date, except in the case of an emergency.

Based on the foregoing, the court finds that the motion is not procedural defective. Defendants provided the information necessary for Plaintiff to stipulate or object to the IME. Further, given there is no dispute that Plaintiff has placed her mental state in controversy, the court finds that good cause exists to compel Plaintiff to submit to an IME.

The motion to compel is GRANTED. Plaintiff is ordered to appear for a psychiatric IME with Dr. Stephanie Peters within 30 days of the date of this order. The IME is to take place as specified in Defendants’ draft stipulation.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff contends that the examination should be considered a “defense medical examination (DME)” rather than an “independent medical examination (IME)”. For the purposes of this order, the court considers the IME and DME one in the same.