Judge: Lynne M. Hobbs, Case: 22STCV16184, Date: 2023-11-09 Tentative Ruling

Case Number: 22STCV16184    Hearing Date: November 9, 2023    Dept: 30

ADRIAN GONZALEZ, BY AND THROUGH HIS GUARDIAN AD LITEM, APRIL AMBER ADAMS vs EMILIA QUIROA, et al.

Motion to Compel IME 

TENTATIVE

Defendant’s Motion is GRANTED. Plaintiff is ordered to appear for his neuropsychological examination within 30 days of this order at the office of Dr. Dr. Mi-Yeoung Jo, Pediatric Neuropsychologist, located at 15335 Morrison Street, Ste 205, Sherman Oaks, CA 91403. Plaintiff’s mother or any third-party nurse is not allowed to attend the examination. Defendant’s request for sanctions is DENIED. Moving party to give notice.

A trial court may construe a motion bearing one label as a different type of motion. (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 930 (Austin).) “ ‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words. … The principle that a trial court may consider a motion regardless of the label placed on it by a party is consistent with the court's inherent authority to manage and control its docket.’ [Citation.]” (Ibid.) Thus, the Court will turn to the merits of the motion.

On May 10, 2023, defendant served a demand for physical examination on plaintiff with Dr. Jo for July 18, 2023 at 10:00 am. (Sohovich Decl., Exh. A.) Plaintiff appeared but would not participate without his mother or other witness in the room during the exam. 

The Court notes that the Parties do not dispute that Plaintiff is subject to a mental examination due to his complaints of fear of dogs, bed wetting and anxiousness as a result of the alleged dog bite incident. Instead, the Parties dispute whether Plaintiff’s mother or a nurse should be allowed to attend the mental examination. As such, the Court’s analysis will be limited to that issue.

There is a special need for rapport between examiner and examined during a mental examination, and thus, neither counsel nor court reporters may attend a mental examination absent a court order or stipulation.¿ (See¿Edwards v. Superior Court¿(1976) 16 Cal.3d 905, 910-912;¿see also¿Toyota Motor Sales, U.S.A., Inc. v. Superior Court¿(2010) 189 Cal.App.4th 1391, 1396-1397;¿Golfland¿Entertainment Centers, Inc. v. Superior Court¿(2003) 108 Cal.App.4th 739, 750-751.)¿ “The examiner and examinee shall have the right to record a mental examination by audio technology.”¿ (Code Civ. Proc. § 2032.530,¿subd. (a).)¿ “Nothing in this title shall be construed to alter, amend, or affect existing case law with respect to the presence of the attorney for the examinee . . . during the examination by agreement or court order.”¿ (Code Civ. Proc. § 2032.530,¿subd. (b).)¿

Defendant contends that Plaintiff’s mother and nurse should be excluded from Plaintiff’s mental examination because their presence will lessen the prospect of the necessary rapport between the examiner and Plaintiff. Defendants’ expert opines that Third Party Observers (TPOs) are a distraction by virtue of their mere presence in the room even if they do not engage in any behavior that appears subjectively disruptive. They have the potential to adversely compromise patient test performance and limit the free flow of information provided to the practitioner conducting the exam. When TPOs are present during a neuropsychological examination, it creates internal and external distractions that the patient is forced to contend with (e.g., a child who may repeatedly look at their mother for reassurance before answering a question, which may impact scores on timed tasks and shape the way the child answers the question). The patient may direct their behavior towards the TPO and/or decrease disclosure of sensitive but important information that is needed to interpret the data (e.g., a teenager who does not want to disclose potential substance use history in front of a parent). (See Jo, PsyD, ABPP-CN Decl., ¶ 7.)

In opposition, Plaintiff argues the Court cannot allow a ten-year-old minor, who has been diagnosed with posttraumatic stress disorder, to endure another traumatic situation, by being examined in a room alone with a stranger—a trained psychologist hired by Defendant-whose main goal it is not to treat Adrian, but to ascertain the veracity of Adrian’s current mental condition. Plaintiff contends that is a dangerous, risky, and precarious environment for any minor to be left unattended.

As a preliminary matter, Plaintiff’s reliance on Edwards is unavailing, as the facts at hand are distinguishable. While the court in Edwards did state that a family member may be able to provide comfort and emotional support, the Edwards court follows that statement with “[h]owever, we are satisfied that to require the addition of other persons in the examining room would be distracting, if not disrupting . . . of paramount importance is the concern that the examination be valid and have meaning, free from outside influences which might disrupt it.” (Id., at 911.)

Here, while Plaintiff essentially contends that he requires his mother to be present for comfort and emotional support, he fails to provide a declaration from his medical provider stating that he is unable to proceed with the examination without his mother’s presence because of his sensitivities. Without more, the Court must assume that the examiner will proceed in an ethical and respectful manner. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 836.) While the mental examination may be somewhat uncomfortable, whatever comfort Plaintiff’s mother may provide is “substantially outweighed by the distraction and potential disruption of a third person.” (Id. at 845.) As the Vinson court found, there is a special need for rapport between examiner and examined during a mental examination, and there is no evidence that Plaintiff will be unable to proceed with the examination without his mother’s presence.

Lastly, Plaintiff argues that Defendants have been dilatory in bringing his motion but does not request any kind of relief; for example, Plaintiff does not argue being dilatory would be a reason to deny the motion. Moreover, the Court is aware of no such authority. Nevertheless, Defendant explains that the IME was to take place on July 18, 2023. When it became apparent that the meet and confer process was not going to resolve this issue, on August 21, 2023, the motion date was reserved. The first available motion date was November 9, 2023. Thus, it does not appear Defendants were dilatory.

Thus, Defendant’s Motion is GRANTED. Plaintiff is ordered to appear for his neuropsychological examination within 20 days of this order at the office of Dr. Mi-Yeoung Jo, Pediatric Neuropsychologist, located at 15335 Morrison Street, Ste 205, Sherman Oaks, CA 91403. Plaintiff’s mother or any third-party nurse is not allowed to attend the examination.

Sanctions

Defendant requests sanctions, but fails to cite to any proper authority for this request. Defendant cites to Code of Civil Procedure section 2032.240, which applies to physical examinations. But, as noted above, Defendant is moving for a psychological examination. Thus, the Court cannot grant the request for sanctions under the cited section. In any event, the Court finds that Plaintiff acted with substantial justification as he is just a minor, is presumably afraid and simply wants his mother’s emotional support.