Judge: Lisa R. Jaskol, Case: 21STCV07053, Date: 2024-01-26 Tentative Ruling
Case Number: 21STCV07053 Hearing Date: January 26, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On February 22, 2021, Plaintiff Joseph Manuel Gonzales (“Plaintiff”) filed this action against Defendants Palmer Flower Street Properties II, LP, Palmer Flower Street Properties II, LLC, G.H. Palmer Associates, GH Palmer, Inc., GHP Management Corporation, GH Palmer Inc. dba G.H. Palmer Associates, The Lorenzo dba Lorenzo Apartments, Orthopaedic Institute for Children Foundation (“Institute”), and Does 1-100 for motor vehicle tort and general negligence.
On May 5, 2021, Institute filed an answer.
On June 25, 2021, Defendants GH Palmer Inc. (erroneously sued as GH Palmer Associates, GH Palmer Associates, LP, and GH Palmer Associates), Palmer Flower Street Properties II, LLC (erroneously sued as Palmer Flower Street Properties II, LP and The Lorenzo dba Lorenzo Apartments), and GHP Management, Inc. filed an answer.
On March 24, 2022, Plaintiff amended the complaint to include Defendants Joe’s Auto Parks, LLC as Doe 1 and L&R Group of Companies as Doe 2.
On April 22, 2022, Defendants L and R Auto Parks, Inc. dba Joe’s Auto Parks, erroneously sued as L and R Group of Companies (Doe 2), and Joe’s Auto Parks, LLC (Doe 1) filed an answer.
On December 29, 2023, Defendants GH Palmer Inc., Palmer Flower Street Properties II, LLC, and GHP Management, Inc. (“Moving Defendants”) filed a motion to compel Plaintiff to appear for a neuropsychological independent medical examination conducted by April Thames, Ph.D. The motion was scheduled to be heard on January 26, 2024. On January 12, 2024, Plaintiff filed an opposition. On January 19, 2024, Moving Defendants filed a reply.
Trial is currently scheduled for April 22, 2024.
PARTIES’ REQUESTS
Moving Defendants request that the Court compel Plaintiff to appear for a neuropsychological exam with neuropsychologist April Thames, Ph.D., on February 13 and 14, 2024, at 9:00 a.m. at 760 Westwood Plaza, C8-841, Los Angeles, California 90024. Moving Defendants also ask the Court to allow the neuropsychologist to send the raw materials and audio recording of the forensic testing portion of the examination only to Plaintiff's expert psychologist.
Plaintiff requests that the Court require the neuropsychologist to provide Plaintiff's counsel a copy of the audio recording of the entire examination and the raw data, subject to a protective order, within 30 days of the exam.
LEGAL STANDARD
Code of Civil Procedure section 2032.020 provides in part:
“(a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.
* * *
“(c) (1) A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders. . . .”
(Code Civ. Proc., § 2032.020, subds. (a), (c)(1).)
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:
“(a) The court shall grant a motion for a physical or mental examination undr Section 2032.310 only for good cause shown.
“(b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.
“(c) A stipulation by a party under this subdivision shall include both of the following:
“(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.
“(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.
“(d) 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.
“(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.)
DISCUSSION
Asserting that Plaintiff’s mental condition is in controversy, Moving Defendants ask the Court to compel Plaintiff to attend a mental examination with a neuropsychologist. Moving Defendants argue that the Court should reject Plaintiff’s request for an audio recording of the entire examination because Moving Defendants’ neuropsychologist is ethically and legally bound to withhold this material from anyone other than a licensed psychologist. According to Moving Defendants, the parties reached an agreement that the neuropsychologist was not required to provide the raw data resulting from the examination to Plaintiff’s counsel.
Plaintiff asserts that Moving Defendants rejected his agreement about the raw data by filing this motion. Plaintiff argues that he is entitled to receive (1) an audio recording of the entire examination under Code of Civil Procedure section 2032.530, subdivision (a), (2) a copy of the detailed written report under Code of Civil Procedure section 2032.610, and (3) the raw data.
1. Audio recording
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).) Moving Defendants have provided no authority that limits this right by excluding the forensic testing portion of the examination.
Moving Defendants rely on 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.)
Moving Defendants cite no statutory or case authority applying this regulation to restrict an examinee’s rights under Code of Civil Procedure section 2032.530, subdivision (a).
The Court denies Moving Defendants’ request for an order permitting the neuropsychologist to withhold portions of the audio recording from Plaintiff’s counsel. The Court invites the parties to submit a stipulated protective order restricting the dissemination of information contained in the audio recording for the Court’s approval.
2. Written report
Code of Civil Procedure section 2032.610 provides:
“(a) If a party submits to, or produces another for, a physical or mental examination in compliance with a demand under Article 2 (commencing with Section 2032.210), an order of court under Article 3 (commencing with Section 2032.310), or an agreement under Section 2016.030, that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party:
“(1) A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.
“(2) A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.
“(b) If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.
“(c) In the circumstances described in subdivision (a), the protection for work product under Chapter 4 (commencing with Section 2018.010) is waived, both for the examiner’s writings and reports and to the taking of the examiner’s testimony.”
(Code Civ. Proc., § 2032.610.)
Moving Defendants do not dispute their obligation under Code of Civil Procedure section 2032.610 to provide a copy of the neuropsychologist’s detailed written report to Plaintiff. The Court orders Moving Defendants to provide this report in compliance with the statute.
3. Raw data
In Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818 (Randy’s Trucking), 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.” (Ibid.)
The Court of Appeal weighed the defendants’ evidence of potential harm to the neuropsychologist’s professional and ethical obligations against “plaintiffs’ right to take discovery and cross-examine defendants’ expert witnesses, which includes being able to examine the expert on the matter upon which the expert’s opinion is based and the reasons for that opinion.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) The Court reasoned, “[w]ithout the raw data and audio recording, 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.” (Ibid.)
The Court of Appeal concluded that “the trial court reasonably could find plaintiffs had a legitimate need for the raw data and audio recording and the concerns about maintaining test security would be satisfied with a protective order.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) “[T]he trial court did not abuse its discretion in ordering transmission of raw data and audio recording to plaintiffs’ attorney subject to a protective order, as plaintiffs demonstrated a need for the materials and the protective order would address the concerns about test security and integrity.” (Id. at p. 842, fn. omitted.)
Here too, Plaintiff argues that he “cannot meaningfully conduct expert discovery and cross-examine the defendant’s expert witnesses without raw data such as test questions and answers on which the defendant’s expert’s opinion is based.” (Opposition p. 6.) The Court exercises its discretion and orders release of the testing results and raw data to Plaintiff’s attorney subject to a protective order.
The Court grants the motion to compel Plaintiff to attend the examination and denies Moving Defendants’ requests to limit dissemination of the audio recording and raw data to Plaintiff’s expert psychologist.
CONCLUSION
The Court GRANTS IN PART the motion of Defendants GH Palmer Inc., Palmer Flower Street Properties II, LLC, and GHP Management, Inc. to compel Plaintiff Joseph Manuel Gonzales’s neuropsychological independent medical examination. The Court orders Plaintiff Joseph Manuel Gonzales to appear for a neuropsychological independent medical examination with neuropsychologist April Thames, Ph.D., on February 13 and 14, 2024, at 9:00 a.m. at 760 Westwood Plaza, C8-841, Los Angeles, California 90024.
In all other respects, the Court DENIES the motion.
The Court orders the neuropsychologist to produce the raw data and copy of the entire audio recording of the examination to Plaintiff’s counsel subject to a protective order. The parties may submit for the Court’s approval a proposed protective order which orders the parties not to copy the test materials, raw material, or audio recording, to return specified materials to the neuropsychologist at the conclusion of litigation, not to share any materials with anyone who is not a party or counsel for a party to the litigation, and to destroy specified information at the conclusion of the litigation.
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.