Judge: Lisa R. Jaskol, Case: 20STCV26421, Date: 2024-05-15 Tentative Ruling
Case Number: 20STCV26421 Hearing Date: May 15, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On July 14, 2020, Plaintiffs Nicole Triplett (“Triplett”) and Latasha Nash (“Nash”) filed this action against Defendants Contemporary Services Corporation, City of Los Angeles (“City”), Service Management Group, LLC, and Does 1-50 for assault, battery, negligence, false imprisonment, battery by peace officer, and violation of federal civil rights 42 U.S.C. section 1983. On August 20, 2020, Plaintiffs filed a notice of errata correcting three dates in the complaint.
On September 21, 2020, the Court dismissed Defendant Service Management Group, LLC, with prejudice at Plaintiffs’ request.
On October 5, 2020, the City filed an answer.
On January 7, 2021, the Court dismissed Defendant Contemporary Services Corporation without prejudice at Plaintiffs’ request.
On April 7, 2021, Plaintiffs amended the complaint to include Defendants SMG Entertainment, Inc. as Doe 1, Staff Pro, Inc. as Doe 2, and Universal Protection Service, LP, as Doe 3.
On June 24, 2021, Plaintiffs amended the complaint to include Defendants SMG Management, LLC, as Doe 4, SMG Management I, LLC, as Doe 5, and SMG Management II, LLC, as Doe 6.
On July 21, 2021, the Court sustained the demurrer and granted the motion to strike filed by Defendants Staff Pro, Inc. d/b/a Allied Universal Event Services and Universal Protection Service, LP, with leave to amend.
On August 10, 2021, Plaintiffs filed a first amended complaint.
On October 8, 2021, the City filed an answer.
On October 14, 2021, the Court sustained the demurrer filed by Defendants Staff Pro, Inc. d/b/a Allied Universal Event Services and Universal Protection Service, LP to the claims for assault and battery, false imprisonment, battery by a police officer, and civil rights violations under 42 U.S.C. section 1983 with leave to amend.
On November 3, 2021, Plaintiffs filed a second amended complaint which added Defendants Steve Lozano (“Lozano”) as Doe 11, Michelle Cassida (“Cassida”) as Doe 12, Joe Paradice (“Paradice”) as Doe 13, Ryan Anderson (“Anderson”) as Doe 14, Michael Miller (“Miller”) as Doe 15, Emmanuel Turner (“Turner”) as Doe 16, Sonia Lopez (“Lopez”) as Doe 17, Beatriz Villareal (“Villareal”) as Doe 18, Kendra McDonald (“McDonald”) as Doe 19, and Dolores Martinez-Reifer (“Martinez-Reifer”) as Doe 20.
On January 5, 2022, the Court granted the motion to strike portions of Plaintiff’s second amended complaint filed by Defendants City, SMG Management LLC, SMG Management I, LLC, and SMG Management II, LLC. In addition, the Court sustained the demurrer of Defendants Universal Protection Service, LP and Staff Pro, Inc. dba Allied Universal Event Services to the fifth cause of action for battery by a peace officer with 20 days leave to amend. The Court granted the motion to strike portions of the second amended complaint filed by Defendants Universal Protection Service, LP and Staff Pro, Inc. dba Allied Universal Event Services.
On January 25, 2022, Plaintiffs filed a third amended complaint.
On March 7, 2022, the City, Martinez-Reifer, Cassida, and Lozano filed answers. Defendants SMG Management, LLC, SMG Management I, LLC, and SMG Management II, LLC, also filed an answer.
On April 21, 2022, Defendant Staff Pro, Inc. dba Allied Universal Services (erroneously sued and served as “Staff Pro, Inc.”) and Universal Protection Service, LP, filed answers.
On June 14, 2022, the Court granted a stipulated request for a protective order.
On November 2, 2022, the Court dismissed Universal Protection Service, LP, without prejudice at Plaintiffs’ request.
On December 19, 2022, Defendant and Cross-Complainant Staff Pro Inc. dba Allied Universal Event Services (erroneously sued and served as Staff Pro, Inc.') filed a cross-complaint against Cross-Defendants SMG Management, LLC, SMG Management I, LLC, SMG Management II, LLC, and Roes 1-10 for equitable indemnity, express contractual indemnity, implied contractual indemnity, contribution/apportionment of fault, and declaratory relief. On February 3, 2023, Cross-Defendants SMG Management, LLC, SMG Management I, LLC, and SMG Management II, LLC filed an answer to the cross-complaint.
On July 20, 2023, Anderson, Miller, Lopez, McDonald, Paradice, Turner and Villareal filed answers to Plaintiffs’ third amended complaint.
B. Motions for leave to conduct Plaintiffs’ mental examinations
On January 19, 2024, Defendants City, SMG Management, LLC, SMG Management I, LLC, SMG Management II, LLC, Lozano, Martinez-Reifer, and Cassida (“Moving Defendants”) filed motions for leave to conduct Plaintiffs’ mental examinations. The motions were set to be heard on April 16, 2024. The Court continued the hearings to May 15, 2024. On January 26, 2024, Defendants Staff Pro, Inc. dba Allied Universal Event Services (erroneously sued and served as Staff Pro, Inc.), Paradice, Anderson, Miller, Turner, Lopez, Villareal, and McDonald filed joinders in the motions. On April 3, 2024, Plaintiffs filed oppositions. On April 9, 2024, Moving Defendants filed replies.
Trial is currently scheduled for August 9, 2024.
PARTIES’ REQUESTS
Moving Defendants ask the Court for leave to obtain discovery by mental examinations of Nash and Triplett to be conducted by Michelle Conover, Ph.D., whose specialty is neuropsychology, at Southern California Neuropsychology Group, 5950 Canoga Ave., Suite 100, Woodland Hills, CA 91367. Moving Defendants also ask the Court to order that (1) Plaintiffs may not make an audio recording of the entire examination and (2) Moving Defendants are not required to produce the raw test materials and data to Plaintiffs' counsel.
Triplett and Nash ask the Court (1) to allow them to make audio recordings of the entire examination, (2) to order Moving Defendants to produce the raw test data and test materials to Plaintiffs’ counsel, and (3) to order Moving Defendants to provide an exact list of the tests that Dr. Conover will use.
Code of Civil Procedure section 2032.220 provides:
“(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:
“(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.
“(2) The examination is conducted at a location within 75 miles of the residence of the examinee.
“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.
“(c) A demand under subdivision (a) 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 physician who will perform the examination.
“(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time.
“(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.”
(Code Civ. Proc., § 2032.220.)
Code of Civil Procedure section 2032.310 provides:
“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.
“(b) A motion for an examination under subdivision (a) 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides in part:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
A. Good cause
Nash
and Triplett allege that Defendants’ actions caused them to suffer mental injuries. They “[do] not oppose the notion of a defense
examination as long as the exam[inations] [are] reasonably limited in scope and
with appropriate protections in place.”
Specifically, Nash and Triplett ask the Court (1) to allow them to make audio
recordings of the entire examination, (2) to order Moving Defendants to produce
the raw test data and test materials to Plaintiffs’ counsel, and (3) to order
Moving Defendants to provide an exact list of the tests that Dr. Conover will use.
The Court finds good cause for the mental examinations.
B. Audio recording of examinations
According to Moving Defendants, Dr. Conover will permit audio recording of the interview portion of the examinations. However, Dr. Conover will not permit audio recording of the cognitive screening and test administration portions of the examinations.
Code of Civil Procedure section 2032.530, subdivision (a), provides that “The examiner and examinee shall have the right to record a mental examination by audio technology.” (Code Civ. Proc., § 2032.530, subd. (a).) “[S]ince section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording.” (Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 837 (Randy’s Trucking).)
The plain language of the statute allows Plaintiffs to use audio technology to record the examinations without imposing any limitations. Moving Defendants cite no legal authority that would allow the Court to limit Plaintiffs’ rights under Code of Civil Procedure section 2032.530, subdivision (a), based on the policy considerations Moving Defendants advance.
The Court denies Moving Defendants’ request for an order preventing Plaintiffs from recording the entire examination, including cognitive screening and testing portions. Plaintiffs may make audio recordings of the entire examination. The audio recordings will be subject to the June 14, 2022, stipulated protective order.
C. Raw test data and test materials
In Randy's Trucking, supra, 91 Cal.App.5th 818, the trial court granted the defendants’ motion for leave to obtain a mental examination of the plaintiff conducted by a neuropsychologist. (Id. at p. 824.) The court denied the defendants’ request to transfer the testing information to the plaintiffs’ expert rather than the plaintiffs’ counsel. (Id. at p. 832.) Instead, the court ordered the neuropsychologist to provide an audio recording of the examination and “‘all raw data’” to the plaintiffs’ counsel within 30 days after the examination subject to a protective order. (Ibid.) The defendants petitioned for a writ of mandate. (Id. at p. 825.)
The Court of Appeal denied writ relief. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 825.) The court observed, “[t]here is no statutory authority . . . precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.” (Id. at p. 834, citing Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 271.) And “given the trial court’s broad discretion in discovery matters, the trial court . . . has the power to order disclosure of test materials and data to plaintiff’s attorney.” (Id. at p. 835.) Therefore, the trial court had discretion to order the production to the plaintiffs’ counsel of the raw data and audio recording. (Id. at p. 837.)
The defendants argued the trial court abused its discretion because the need to protect the neuropsychologist from violating her ethical and professional obligations outweighed the plaintiffs’ need for the raw data and audio recording. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 837.) However, the neuropsychologist in Randy’s Trucking “did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs’ attorney subject to a protective order.” (Id. at pp. 837-838.)
The Court of Appeal reasoned that, “[w]ithout the raw data and audio recording, [the plaintiffs] cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist’s opinion.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) Moreover, the plaintiffs “should not be forced to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, ‘the attorney must themselves possess more than a second-hand understanding of the information being scrutinized.’ ” (Ibid.)
Here, Moving Defendants’ neuropsychologist Dr. Conover has submitted a declaration explaining that she “do[es] not permit audio recording by a third party of test procedures of the examination due to [her] ethical and professional obligations as a psychologist and neuropsychologist to preserve test security.” Dr. Conover states that “the examinations use various and very sensitive, copyrighted materials in the tests, not to mention the effectiveness of the testing depending on the examinee not being familiar with the tests used or the test process.” She describes potential harms that could result from requiring the disclosure of raw testing data to Plaintiffs’ counsel.
Moving Defendants also cite Code of Regulations, Regulations, title 16, Section 1396.3 which 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 naiveté 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., tit. 16, § 1396.3.)
“While this regulation requires psychologists to maintain test security, it does not address a psychologist’s duty when a court order requires an attorney’s access to psychological tests or devices, particularly subject to a protective order that requires the parties to safeguard the use of the tests or devices. Put another way, the regulation does not prohibit a psychologist from producing tests or devices when ordered by a court subject to a protective order.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 839.)
The Court has carefully considered Dr. Conover's and Moving Defendants’ objections to the disclosure of raw testing data to Plaintiffs’ counsel. The Court concludes that Plaintiffs’ legitimate need for the raw testing data and materials (see Randy’s Trucking, supra, 91 Cal.App.5th at p. 838) outweighs the concerns about maintaining test security – particularly where, as here, a protective order is in effect. The Court exercises its discretion and orders release of the raw testing data and materials to Plaintiff’s counsel subject to the protective order. (See id. at p. 842.)
D. List of tests
Plaintiffs ask the Court to order Moving Defendants to provide an “exact” list of the tests their expert will use, arguing that a list of potential tests, some of which may not be used, violates “the intent and spirit of [Code of Civil Procedure] section 2032.320.” The Court finds that the list of potential tests sufficiently complies with Code of Civil Procedure section 2032.320 and allows Plaintiffs and their attorneys to consider in advance of the examination whether the proposed tests are inappropriate, irrelevant, or abusive.
The potential tests are listed on pages 2-3 of Moving Defendants’ motions.
E. Dates of examinations
The examinations will take place on mutually agreeable dates within 30 days of the hearing on the motions. If Moving Defendants need additional time to find a psychologist who will comply with the Court’s orders, they may file an ex parte application to continue the deadline for conducting the examinations.
CONCLUSION
The Court GRANTS IN PART and DENIES IN PART the motion for leave to conduct Plaintiff Nicole Triplett’s mental examination filed by Defendants City of Los Angeles, SMG Management, LLC, SMG Management I, LLC, SMG Management II, LLC, Steve Lozano, Dolores Martinez-Reifer, and Michelle Cassida.
The Court GRANTS IN PART and DENIES IN PART the motion for leave to conduct Plaintiff Latasha Nash’s mental examination filed by Defendants City of Los Angeles, SMG Management, LLC, SMG Management I, LLC, SMG Management II, LLC, Steve Lozano, Dolores Martinez-Reifer, and Michelle Cassida.
The Court ORDERS Moving Defendants (1) to allow Plaintiffs Nicole Triplett and Latasha Nash to make audio recordings of the entire examination and (2) to produce the raw test data and test materials to Plaintiffs’ counsel. The audio recordings and production of data and materials will be subject to the previously-entered protective order.
Michelle Conover, Ph.D., whose specialty is neuropsychology, will conduct the examinations at Southern California Neuropsychology Group, 5950 Canoga Ave., Suite 100, Woodland Hills, CA 91367. The examinations will take place within 30 days of the date of the hearing on the motions. Moving Defendants may request a continuance of the deadline if they need additional time to find another psychologist to perform the examinations.
The potential tests are listed on pages 2-3 of Moving Defendants’ motions.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.