Judge: Lee S. Arian, Case: 23STCV13600, Date: 2025-02-06 Tentative Ruling

Case Number: 23STCV13600    Hearing Date: February 6, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

At issue are the mental examinations for Plaintiffs Angie Sanchez and Josseline Pineda.

Plaintiff Sanchez, in her discovery responses, alleges serious emotional distress, PTSD, fear of loud noises, inability to concentrate at school or enjoy social activities, "head trauma ... headaches and photophobia ... acute posttraumatic headaches ... [and] cognitive difficulties." Defendant City of Los Angeles now moves the court for leave to conduct Plaintiff Sanchez’s examination by Dr. Anita Herrera-Hamilton, Ph.D., ABPP-CN, a board-certified neuropsychologist, on February 19, 2025. The examination is expected to take approximately six hours and will consist of two parts. During the first part of the examination, the examiner will take Plaintiff's history and observe her. The second part will include the administration of the following tests:

• Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V)
• Wechsler Adult Intelligence Scale, Fourth Edition (WAIS-IV)
• Delis Kaplan Executive Functioning System (DKEFS)
• A Developmental Neuropsychological Assessment, Second Edition (NEPSY-2)
• California Verbal Learning Test, Third Edition
• Child and Adolescent Memory Profile (CHAMP)
• Memory Complaints Inventory (MCI)
• Beery Buktenica Visual Motor Integration Task, Sixth Edition (Beery VMI)
• Balance and Error Scoring System
• B-Test
• Rey 15-item
• Shipley-2
• Rey-Osterrieth Complex Figure
• Connor’s Continuous Performance Test, Third Edition (Connor’s CPT3)
• Minnesota Multiphasic Personality Inventory, Adolescent (MMPI-A)
• Wechsler Individual Achievement Test, Fourth Edition
• Memory Validity Profile
• Adaptive Behavior Assessment System
• Trauma Symptoms Inventory, Second Edition
• UCLA PTSD Reaction Index
• Behavioral Rating Inventory of Executive Functioning, Second Edition (BRIEF2)
• Behavior Assessment System for Children, Third Edition (BASC-3),
• Self-Report, Child

Plaintiff Pineda, in her complaint, alleges that she sustained "permanent and severe … mental injuries." In discovery responses, she further alleges that she “suffered and continues to suffer from serious emotional distress … to a degree such that a reasonable person would be unable to cope.”

Defendant now moves the court for leave to conduct her mental examination by Dr. Anita Herrera-Hamilton on February 20, 2025. The examination is expected to take approximately three hours and will consist of two parts. During the first part of the examination, the examiner will take Plaintiff's history and observe her. The second part will include the administration of the following tests:

·         Minnesota Multiphasic Personality Inventory, Third Edition (MMPI-3)

• Trauma Symptoms Inventory, Second Edition
• UCLA PTSD Reaction Index

Plaintiffs filed an opposition but do not contest that there is good cause for the mental examination. The evidence provided also indicate that Plaintiffs are alleging mental injuries beyond garden-variety types. Accordingly, the court finds good cause for the mental examination.

Plaintiffs request the following limitations on the examinations:

• Defendant’s notice needs to specify the exact tests to be administered by the proposed examiner and should state that no other tests may be conducted.
• Plaintiff does not contest the duration of each mental examination but notes that the notice states the examinations will take approximately six and three hours. Plaintiff requests that the Court order the examinations to last no longer than six hours and three hours, respectively.
• Plaintiff requests that audio recording be allowed for the examination.
• Plaintiff requests that the full audio recording and the raw testing data be provided to Plaintiff’s counsel

In its reply, Defendant argues that the exact tests to be performed from that list cannot be determined until the examinee has been interviewed. Defendant agreed to the audio recording but stated that the raw testing data and the audio recording should be provided to Plaintiff’s psychologist only.

In applying CCP § 2032.310 and in balancing Plaintiff’s need for relevant information against the protection of the integrity of the tests, the Court rules as follows: 

1.  The Court finds the specificity in Defendant’s notices to be sufficient. Defendant is conducting only two tests on Plaintiff Pineda for the three-hour examination, which the Court deems adequately specific.

As for Plaintiff Sanchez, she alleges a wide range of mental injuries, including post-traumatic stress disorder, fear of loud noises, inability to concentrate at school or enjoy social activities, head trauma, headaches, photophobia, acute post-traumatic headaches, and cognitive difficulties. Given these broad claims, the range of tests listed in Defendant’s notice for Plaintiff Sanchez is reasonable.

Furthermore, mental examinations often require flexibility, as the examiner may determine that certain tests are unnecessary or that additional tests are needed based on the interview and evaluation. At this stage, the psychologist only knows that Plaintiff has been diagnosed with PTSD, emotional distress, head trauma, and cognitive difficulties. Without prior testing and an interview, predicting the precise tests in advance is impractical. As the examination progresses and more information is gathered, the relevance of certain tests may change. It is therefore reasonable for Defendant to select from a list of potential tests based on the evolving specifics of the case. Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 267 supports this approach, allowing Plaintiff to request identification of "potential tests and procedures".

The Court acknowledges that providing a broad list of tests could lead to abuse if Defendant were to include an excessive number of tests, making it difficult for Plaintiff to determine which ones will actually be performed. However, this is not the situation here. The tests listed by Defendant relate specifically to Plaintiff's alleged PTSD, emotional distress, head trauma, and cognitive difficulties. The list is concise enough to provide Plaintiff with adequate notice, allowing her to object to any tests she deems inappropriate, irrelevant, or abusive.

2.  Defendant’s examination shall not exceed 4 hours for Plaintiff Pineda, including one break of at least 15 minutes, and 8 hours for Plaintiff Sanchez, including at least 3 breaks totaling at least one hour.

3.  Raw data is to be provided to Plaintiff’s’ counsel for cross examination purposes and to challenge Defendant’s expert’s conclusions but subject to a protective order, requiring the materials to remain confidential and used solely for the purposes of this case to obviate any concerns over production of raw data. 

Restricting access to raw data solely to licensed neuropsychologists would force Plaintiffs to prematurely disclose their expert’s identity simply to access crucial data, which could compromise Plaintiffs’ litigation strategy. Allowing Plaintiffs’ counsel direct access ensures that they retain control over the timing of expert disclosures, consistent with standard litigation practices where expert identification is typically delayed until later stages of discovery. Neuropsychologists are also costly to retain, creating a significant financial barrier for plaintiffs with limited means.  Given these considerations, the Court finds that allowing Plaintiffs’ counsel access to the raw data outweighs any interest in limiting it exclusively to another expert. The Court therefore orders that raw data from the testing portion be provided directly to Plaintiffs’ counsel, subject to a protective order to maintain confidentiality and restrict its use to this case. 

Plaintiffs are ordered to attend their mental examinations within 30 days of today, subject to the parties' agreement and the Court’s ruling on the issues listed above.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  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.