Judge: Lisa R. Jaskol, Case: 21STCV27019, Date: 2024-12-30 Tentative Ruling
Case Number: 21STCV27019 Hearing Date: December 30, 2024 Dept: 28
Having considered the moving, opposition, reply papers, the Court rules as follows.
BACKGROUND
On July 22, 2021, Plaintiffs Yejin Jo (“Jo”), Jiyoon Kim (“Kim”), and Da Jung Park (“Park”) filed this action against Defendants Vahik Vartan (“Vartan”), Uber Technologies, Inc. (“Uber”), Rasier, LLC (“Rasier”), Rasier-CA, LLC (“Rasier-CA”), and Does 1-100 for motor vehicle tort and general negligence.
On September 14, 2021, the Court found that this case (21STCV27019) and case numbers 21STLC00790 and 21STCV28768 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 21STCV27019 became the lead case. The cases were assigned to Department 28 of the Spring Street Courthouse for all purposes.
On September 17, 2021, Vartan filed an answer and a cross-complaint against Cross-Defendants Juliana Sua (“Sua”) and Roes 1-25 for implied indemnity, comparative contribution, equitable indemnity, and declaratory relief.
On December 17, 2021, Uber, Rasier, and Rasier-CA filed answers.
On March 9, 2022, Rasier filed a cross-complaint against Cross-Defendants Sua and Poes 1-10 for equitable indemnity, total indemnity, apportionment, contribution, and declaratory relief.
On March 9, 2022, Rasier-CA filed a cross-complaint against Cross-Defendants Sua and Moes 1-10 for equitable indemnity, total indemnity, apportionment, contribution, and declaratory relief.
On March 9, 2022, Uber filed a cross-complaint against Cross-Defendants Sua and Woes 1-10 for equitable indemnity, total indemnity, apportionment, contribution, and declaratory relief.
On June 22, 2022, Sua filed answers to the cross-complaints.
On August 10, 2022, Sua filed a notice of settlement.
On December 13, 2022, the Court denied a motion to compel arbitration filed by Uber, Rasier, and Rasier-CA. On January 10, 2023, Uber, Rasier, and Rasier-CA filed a notice of appeal. On June 9, 2023, the Court stayed the case pending appeal. On November 29, 2023, the Court clarified the scope of the stay.
On January 24, 2024, the Court of Appeal reversed the Court’s December 13, 2022 order based on the parties’ stipulation. The Court of Appeal ordered: “That, upon remand, the Superior Court action shall be stayed only as between Appellants Uber Technologies, Inc., Rasier, LLC, and Rasier-CA, LLC and Respondents Yejin Jo and Jiyoon Kim pursuant to their stipulation to arbitrate (though nothing herein prevents any party to the Superior Court action from seeking to stay other parts of the action if there is a good faith basis to so request under applicable law) . . . .” The remittitur issued on January 24, 2024.
On September 5, 2024, the Court granted in part and denied in part Vartan’s motion to stay the entire case. The Court stayed the claims of Jo and Kim against Vartan pending the completion of arbitration. In all other respects, the Court denied Vartan’s motion.
On November 18, 2024, Uber moved to compel Park to submit to a neuropsychological independent medical examination. The motion was set for hearing on December 30, 2024. On December 16, 2024, Park filed an opposition. On December 20, 2024, Uber filed a reply.
Trial is currently set for June 2, 2025.
PARTIES’ REQUESTS
Uber asks the Court (1) for leave to conduct Park’s neuropsychological examination with board certified clinical neuropsychologist Mi-Yeoung Jo, Psy.D., on November 26, 2024 or within 10 days of the Court’s ruling, at 9:00 a.m. at 15335 Morrison Street, #205, Sherman Oaks, California 91403, (2) for an order that Park may audio record only the clinical portion of the examination, and (3) for an order that Dr. Jo may disclose her examination results to Park’s expert and not to Park’s counsel.
Park asks the Court to order that (1) Park may audio record the entire examination and (2) Dr. Jo (or another expert who conducts the examination) must disclose the raw data and testing materials directly to Park’s counsel.
UBER’S REQUEST FOR JUDICIAL NOTICE
Denied.
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
Uber wishes to conduct Park’s neuropsychological examination but objects to having its expert, Dr. Jo, disclose the data resulting from the examination directly to Park’s counsel and to having Park audio-record the entire examination. Park agrees to attend the examination but only if Dr. Jo discloses the resulting data directly to Park’s counsel and allows Park to record the entire examination using audio technology.
The Court finds good cause to grant Uber’s motion to conduct Park’s neuropsychological examination because Park has placed her mental condition at issue. (See Code Civ. Proc., § 2032.320, subd. (a).)
B. Audio recording
Uber asks the Court to order that Park may record only the clinical portion of the examination by audio technology.
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 Park to use audio technology to record the examination. Uber cites no legal authority that would allow the Court to limit Park’s rights under Code of Civil Procedure section 2032.530, subdivision (a).
The Court orders that Park may record all portions of the mental examination (including the testing portion) by audio technology. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 8:1595, p.8I-25 [“Both the examiner and the examinee have the right to record the entire examination by audio (but not video) technology”].) The parties may submit a stipulated protective order restricting the dissemination of information contained in the audio recording for the Court’s approval.
C. Raw data and testing materials
Uber asks the Court to allow Dr. Jo to provide the results of her examination only to Park’s expert and not to Park’s counsel. Park asks the Court to order Dr. Jo to disclose the testing materials and raw data directly to Park’s counsel.
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, Uber has submitted a declaration from Dr. Jo, who cites the American Academy of Clinical Neuropsychology’s official position on test security: “With current technology, it would take only a violation by a single individual to result in in widespread digital access of test materials by non-psychologists.”
Park, on the other hand, asserts that her counsel cannot meaningfully cross-examine Dr. Jo unless Dr. Jo produce her raw data to Park’s counsel.
The Court has weighed Dr. Jo’s concerns, which are based on an assumption that the protective order will be ineffective, against Park’s need to prepare for and effectively conduct Dr. Jo’s cross-examination. The Court concludes that Park has a legitimate need for the raw data and Dr. Jo’s concerns about maintaining test security can be satisfied with a protective order. The Court exercises its discretion and orders release of the raw data and testing materials to Park’s attorney subject to a protective order.
CONCLUSION
The Court GRANTS in part Defendant Uber Technologies, Inc.’s motion for leave to conduct Plaintiff Da Jung Park’s neuropsychological examination. Board certified neuropsychologist Mi-Yeoung Jo, Psy.D. (or another qualified expert) will conduct the examination on a mutually agreeable date within 30 days of the date of this Court’s ruling at 15335 Morrison Street, #205, Sherman Oaks, California 91403 (or another location). The examination will take 6 to 8 hours, not including breaks.
Plaintiff Da Jung Park may record the entire examination using audio technology subject to a protective order. Mi-Yeoung Jo, Psy.D. (or another expert who conducts the examination) shall disclose the raw data and testing materials directly to counsel for Plaintiff Da Jung Park within 30 days of the examination subject to a protective order.
The examination will consist of a clinical interview and neuropsychological testing. The neuropsychological testing may include only the following tests:
Auditory
Consonant Trigrams
Korean
Beck Anxiety Inventory
Korean
Beck Depression Inventory
Booklet
Category Test
Korean
Boston Naming Test
Brief
Visual-Spatial Memory Test-Revised
California
Verbal Learning Test-II
Color
Trails
Controlled
Oral Word Association Test
Continuous
Performance Test
Delis-Kaplan
Tests of Executive Functioning
Finger
Tapping
Grooved
Pegboard Test
Hooper
Visual Organization Test
Judgment
of Line Orientation
Korean
Mini Mental Status Exam
Korean
Minnesota Multiphasic Personality Inventory
Neuropsychological
Assessment Battery
Paced
Auditory Serial Addition Test
Performance
validity measures
Korean
Personality Assessment Inventory
Korean
version-PTSD Checklist for DSM-5
Korean
Repeatable Battery for the Assessment of Neuropsychological Status
Rey
Complex Figure
Stroop
Color Word Test
Symbol
Digits Modalities Test
Trail
Making Test
Trauma
Symptom Inventory
Korean
Wechsler Adult Intelligence Scale
Korean
Wechsler Memory Scale
Wide
Range Achievement Test
Wisconsin
Card Sorting Test
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.