Judge: Lisa R. Jaskol, Case: 21STCV03830, Date: 2024-04-23 Tentative Ruling
Case Number: 21STCV03830 Hearing Date: April 23, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On January 29, 2021, Plaintiff Jane Doe (“Plaintiff”), a minor, by and through her guardian ad litem, Renee Noye, filed this action against Defendants Long Beach Unified School District, Jane Does 1-15, and Does 16-100 for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence.
On May 31, 2022, the Court appointed Renee Noye to serve as Plaintiff’s guardian ad litem.
On August 9, 2022, Plaintiff filed a first amended complaint against Defendants Long Beach Unified School District, Jane Does 1-15, and Does 16-100 for negligent supervision of students, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence.
On October 8, 2022, Defendant Long Beach Unified School District (“Defendant”) filed an answer.
On January 31, 2024, Defendant filed a motion to compel Plaintiff’s mental examination, to be heard on April 23, 2024. On April 9, 2024, Plaintiff filed an opposition. On April 15, 2024, Defendant filed a reply.
Trial is currently scheduled for September 24, 2024.
PARTIES’ REQUESTS
Defendant asks the Court to order Plaintiff to appear for a neuropsychological exam with Dr. Roger Light, a board-certified forensic psychiatrist, on May 20 and 21, 2024, from 9:00 a.m. to 3:00 p.m. at The Light Center, 1650 S. Pacific Coast Hwy, Suite 310, Redondo Beach, California. Defendant also asks the Court to order that (1) Plaintiff may not make an audio-recording of the testing portion of the examination and (2) Dr. Light is not required to provide the raw testing data to Plaintiff's counsel.
Plaintiff asks the Court to order that (1) Plaintiff may make an audio recording of the entire examination and (2) Defendant's examining doctor must provide a copy of the detailed written report and raw data within 30 days of the examination.
LEGAL STANDARD
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.
* * *
“(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:
“(1) The court determines that there is good cause for the travel involved.
“(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”
(Code Civ. Proc., § 2032.320, subds. (a), (d), (e).)
DISCUSSION
A. Defendant’s motion to compel mental examination
Defendant moves for leave of court to conduct a neuropsychological examination of Plaintiff, asserting that Plaintiff has put her mental and psychiatric condition in controversy and Plaintiff’s allegations of psychological injuries, emotional trauma, depression, anxiety, and depression establish good cause.
Defendant also asks for orders that (1) the testing portion of the assessment may not be audio-recorded and (2) Dr. Light is not required to release the raw testing data to Plaintiff’s counsel.
Plaintiff opposes the motion, arguing that Plaintiff attended a defense medical examination with Dr. Light on December 7, 2023. However, at Plaintiff’s counsel’s instruction, Plaintiff left the examination when Dr. Light would not allow Plaintiff to audio record the entire examination and refused to produce a detailed report—including the examination findings, raw testing data, diagnosis, prognosis, and conclusions—to Plaintiff’s counsel within 30 days. According to Plaintiff, Defendant’s demand for another examination is improper, burdensome, and harassing.
The Court finds good cause and grants the motion. The Court orders Plaintiff to appear for a neuropsychological exam with Dr. Light on May 20 and 21, 2024, from 9:00 a.m. to 3:00 p.m. at The Light Center, 1650 S. Pacific Coast Hwy, Suite 310, Redondo Beach, California, or at another mutually agreeable date and time.
B. Audio recording of examination
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).)
Defendant
asserts that Plaintiff may not audio-record the testing portion of the
assessment. But the plain language of
the statute allows Plaintiff to use audio technology to record the examination
without imposing any limitations. Defendant
cites no legal authority that would allow the Court to limit Plaintiff’s rights
under Code of Civil Procedure section 2032.530, subdivision (a), based on the policy
considerations Defendant advances.
C. Raw data
In Randy's Trucking, supra, 91 Cal.App.5th 818, the trial court granted the defendants’ motion to compel the plaintiff’s mental examination 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.) But the neuropsychologist “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 too, the Court concludes that Plaintiff has a legitimate need for the raw data and the concerns about maintaining test security can be satisfied with a protective order. (See Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) The Court exercises its discretion and orders release of the raw data to Plaintiff’s attorney subject to a protective order. (See id. at p. 842.)
CONCLUSION
The Court GRANTS IN PART the motion of Defendant Long Beach Unified School District to compel Plaintiff Jane Doe, a minor, by and through her guardian ad litem, Renee Noye, to attend a neuropsychological examination. The Court orders Plaintiff Jane Doe to attend a neuropsychological examination with Dr. Roger Light on May 20 and 21, 2024, from 9:00 a.m. to 3:00 p.m. at The Light Center, 1650 S. Pacific Coast Hwy, Suite 310, Redondo Beach, California, or at another mutually agreeable date and time.
The Court DENIES Defendant Long Beach Unified School District’s request for an order preventing Plaintiff Jane Doe from using audio technology to record the testing portion of the examination. The Court orders Defendant Long Beach Unified School District and its examining doctor to permit Plaintiff to use audio technology to record the entire examination, including the testing portion.
The Court DENIES Defendant Long Beach Unified School District’s request for an order permitting its examining doctor to release the raw testing data only to Plaintiff Jane Doe’s expert. The Court orders Defendant Long Beach Unified School District’s examining doctor to release the raw testing data to Plaintiff Jane Doe’s counsel subject to a protective order along with the examining doctor's detailed written report within 30 days after the examination.
The tests are limited to the following:
Advanced Clinical Solutions for WAIS and WMS, Wechsler Adult Intelligence Scale, WASI, CTONI, Wechsler Test of Adult Reading, Word Fluency Test, Shipley, TONI, WRAT, RAVLT, CVLT-II, Memory Assessment Scale, Recognition Memory Test, WMS, TOMM, WMT, Rey 15 Item test & Recognition, ACT, Trails A & B, Color Trails 1 & 2, CPT, B- test, Dot Counting Test, PASAT, Validity Indicator Profile, Grooved Pegboard Test, Symbol Digit Modalities Test, Frontal Systems Behavioral Scale, BRIEF, DAPS, Psychiatric Diagnosis Screening Questionnaire, Verbal Fluency (FAS), Delis-Kaplan Executive Function System, Finger Tapping Test, Grip strength, PPVT, Rey Complex Figure & Recognition, Category Test, WCST, BDI-II, BAI, MMPI 2 or RF, Battery for Health Improvement-II, Stroop, Visual Form Discrimination, Boston Naming Test, Beery, Boston Diagnostic Aphasia Exam, Reitan-Klove sensory perceptual exam, MOCA
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.