Judge: Martha K. Gooding, Case: 2019-01106337, Date: 2022-10-31 Tentative Ruling

Motion to Compel Physical/Mental Examination

Defendant Saddleback Valley Unified School District’s motion to compel the mental examination of Plaintiff A.B. Doe is granted.

A motion to obtain discovery by means of a mental examination must “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…and be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310(b).)

The moving party must show good cause for the mental examination. (Code Civ. Proc., § 2032.320(a).)

If an action involves allegations of sexual abuse of a minor, and the examinee is less than 15 years of age, “the licensed physician or clinical psychologist shall have expertise in child abuse and trauma.” (Code Civ. Proc., § 2032.020(c)(2).) In addition, the examination of such a minor “shall not exceed three hours, inclusive of breaks.” (Code Civ. Proc., § 2032.340(a).)  However, the Court may grant an extension of the three-hour limit for good cause. (Code Civ. Proc., § 2032.340(b).)

If the Court grants the motion, the order “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.” (Code Civ. Proc., § 2032.320(d).)

Defendant requests that Plaintiff be ordered to submit to an in person mental examination with its expert psychologists, Dr. Constance Dalenberg, a licensed clinical psychologist with over 30 years’ experience in treating and assessing trauma victims, and Dr. Alan Lincoln, a licensed clinical psychologist with over 30 years’ experience specializing in neuropsychology and treatment of individuals diagnosed with autism spectrum disorder, for a total time of no more than 6 hours.

In this action, Plaintiff alleges emotional injuriesa nd that he “suffered and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self-esteem, humiliation, and loss of enjoyment of life.” (Berkeley Decl., Ex. A, SAC at ¶ 66.)  Plaintiff confirms his emotional and mental damages in his verified responses to form interrogatories, in which he stated he “recalls having sustained mental and emotional injuries” and continues to experience complaints, including but not limited to “trouble concentrating, intrusive recollections of the incidents, hiding, refusal to engage in social and/or family events, fear, humiliation, anger, emotional distress, embarrassment, loss of self-esteem, loss of enjoyment of life, and aggression.” (Berkeley Dec., Ex. B, Plaintiff’s Responses to Form Interrogatories Nos. 6.3 and 6.4.) Moreover, Plaintiff further alleges in a recently filed Motion for Protective Order that Plaintiff has been diagnosed as suffering from Autistic Disorder, agitation, anxiety, distractibility, emotional lability, and impulsivity, to name a few of his diagnoses. (Berkeley Dec., Ex. C, Plaintiff’s Motion for a Protective Order.)

The parties do not agree on the parameters of the examination.

As noted, Defendant proposes that the examination be conducted by two psychologists.  Defendant states (and the doctors’ declarations confirm) that the purpose of Dr. Lincoln’s involvement is to assess Plaintiff’s autism and his level of function before Dr. Dalenberg proceeds with her testing regarding Plaintiff’s alleged mental pain and suffering. Dr. Lincoln will not be discussing the subject incident with Plaintiff.  Defendant states that the combined expertise of Dr. Dalenberg and Dr. Lincoln is necessary to evaluate whether Plaintiff’s symptoms are the result of trauma from the alleged incident or his autism.

While it is unusual to have two separate examiners, there is nothing that expressly prohibits this, so long as good cause is demonstrated. (See Shapira v. Sup.Ct. (Sylvestri) (1990) 224 Cal.App.3d 1249, 1255 (holding that a second mental examination may be ordered).) Here, the Court finds that Defendant has shown good cause for both Dr. Dalenberg and Dr. Lincoln to examine the Plaintiff.

The Court also finds that Defendant has demonstrated good cause to conduct an examination that lasts more than three hours.  Dr. Dalenberg describes the examination as follows:

1)   Dr. Lincoln will interview Plaintiff … for the purpose of obtaining background information concerning Plaintiff’s autism diagnosis. The incident(s) will not be discussed during this time. (1 hour)

2)   Dr. Lincoln will engage in testing meant to assess Plaintiff’s autism and his level of function as a result of his autism…. (2 hours)

3)   Following these first two sessions, Dr. Lincoln and Dr. Dalenberg will consult to discuss appropriate testing of Plaintiff based on his cognitive testing and Dr. Lincoln’s assessment of Plaintiff’s autism diagnosis. (.5 hours)

4)   Afternoon testing meant to ascertain whether Plaintiff has suffered mental pain and suffering as a result of the alleged sexual abuse and/or harassment cannot be specified ahead of time given the current unknowns with Plaintiff’s cognitive ability, assessment of his autism, and more. (2.5 hours)

She declares that she has never had a parent or children tell her that the process was stressful for them, as she specializes in this type of evaluation and knows how to speak to children. (Dalenberg Decl., ¶ 5.)

In addition, the identification of the potential tests to be administered in the notice of the examination is sufficient under Code Civ. Proc. § 2032.320(d). (See also Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 261- 62 (“the plain meaning of section 2032.320 is that the trial court must 'specify the ... diagnostic tests and procedures' of the mental examination by naming the tests and procedures to be performed.”).)

As part of the examination Drs. Dalenberg and Lincoln seek to interview Plaintiff’s mother.  Roe v. Superior Court (2015) 243 Cal.App.4th 138 deals with this issue.  The court noted that “[n]othing in section 2032.020 contemplates a "collateral interview" of a minor's parents as part of a mental examination of a party who is a minor.” (Id. at 145.)  It further stated:

While interviewing the parents of a child to gain background and information about that child may be a sound professional practice from a psychiatrist's viewpoint, section 2030.020's plain language does not empower a trial court to make a discovery order requiring such parental interview as part of a mental examination of a party who is a minor.³ Such authority must come from the Legislature.

(Id.)

This is not ambiguous.  No contrary law has been provided. Defendant’s request for its expert to interview Plaintiff’s mother as part of the mental examination is thus denied.

The Court is tentatively inclined not to order that Plaintiff’s mother be excluded from attending the examination, so long as Plaintiff’s mother in no way interferes with the examination or attempts to communicate with or “coach” Plaintiff during the examination.  There is nothing in the doctors’ declarations that justify excluding Plaintiff’s mother from the room, as Dr. Dalenberg only discusses this situation in the context of a remote examination, which presents different challenges, and is not at issue here.

Accordingly, Plaintiff is ordered to appear in person for his mental examination with Drs. Dalenberg and Lincoln within 45 days of the notice of ruling unless otherwise agreed.  The examination by both doctors shall not exceed a total of 6 hours.

Defendant is ordered to submit a proposed order in accordance with this ruling pursuant to Code Civ. Proc., § 2032.320(d), within 5 days.

Defendant is ordered to give notice.