Judge: Michael E. Whitaker, Case: 19STCV23564, Date: 2022-12-20 Tentative Ruling

Case Number: 19STCV23564    Hearing Date: December 20, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Bilal Alvi (Plaintiff) sued Defendants Sun Hill Properties, Inc. and Hillcrest Real Estate, LLC (collectively, Defendants) based on injuries Plaintiff alleges he sustained when a security officer attacked him at Defendants’ property.  Defendants moves to compel a neuropsychological examination of Plaintiff by Ari Kalechstein, Ph.D. (Kalechstein).  Plaintiff opposes the motion.  Defendants reply.

ANALYSIS

A party seeking to require an adverse party to submit to a mental examination must obtain leave of court.  (Code Civ. Proc., § 2032.310, subd. (a).)  The motion to compel a mental examination must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty of the person who will perform the examination.  (Code Civ. Proc., § 2032.310, subd. (b).)  The court may grant the motion and order the adverse party to submit to a mental examination if (1) the adverse party’s mental condition is “in controversy,” and if (2) there is “good cause” for the mental examination.  (Code Civ. Proc., §§ 2032.020, subd. (a), 2032.320, subd. (a); see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258-259.)

            A plaintiff’s mental condition is “in controversy” when the plaintiff alleges a mental injury and the defendant denies the mental injury or the extent of the mental injury.  (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341.) 

Here, Plaintiff claims his injuries include traumatic brain injury, cognitive dysfunction, anxiety, depression, severe post-traumatic stress, memory loss, and post-concussive syndrome.  (Declaration of Thomas D. Nielsen, ¶ 4, Exhibit B.)  In opposition, Plaintiff concedes that he claims a traumatic brain injury as a result of the incident.  That is good cause for a mental examination.  Moreover, the Court finds that Defendant’s motion specifies the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty of the person will perform the examination. (See Notice of Motion.)

Plaintiff does not object to the examination by Kalechstein, but rather objects to conditions of the exam as proposed by Defendants.  Plaintiff requests the Court to order (1) that Plaintiff be permitted to make an audio recording of the examination; and (2) Kalechstein to disclose the test materials and raw data of the examination.

Plaintiff seeks raw data from Kalechstein’s examination to Plaintiff, which raises ethical issues for Kalechstein.  Per Code of Civil Procedure section 2032.610, a party that submitted to a mental examination has the option to demand that the party that requested the examination produce “[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.”  (Code Civ. Proc., § 2032.610, subd. (a).)  It is unclear whether this provision contemplates production of the raw data from psychological testing, or the examiner’s conclusions from that data.  In Carpenter v. Superior Court , the court determined that a trial court has discretion to require an examiner to produce the raw data from psychological testing, but not the obligation to do so.  The court ruled that a trial court should consider the ethical issues relating to the production of the raw data in determining whether to order its production.  (Carpenter v. Superior Court, supra, 141 Cal.App.4th at p. 273.)

However, California Code of Regulations, title 16, section 1396.3 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 naivete 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.)  Thus, disclosure of psychological test material could be cause for license revocation for Kalechstein.  (Ibid.)  

If possible, the Court must interpret California Code of Regulations, title 16, section 1396.3 and Code of Civil Procedure section 2032.610 to give effect to both.  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419-420.)  The Court therefore concludes that Code of Civil Procedure section 2032.610 cannot require Kalechstein to produce the raw data from psychological testing, but rather his reports and conclusions from that data.  The Court notes, however, that Plaintiff is entitled to make an audio recording of the examination.  (Code Civ. Proc., § 2032.530, subd. (a).) 

CONCLUSION AND ORDER

Therefore, the Court grants Defendants’ motion to compel Plaintiff to submit to a neuropsychological examination with Ari Kalechstein, Ph.D. within 30 days of notice of the Court’s orders, unless Defendants stipulate otherwise.

The Court further orders that Plaintiff shall be permitted to make an audio recording of the examination with Ari Kalechstein, Ph.D.

Defendants shall provide notice of the Court’s order and file proof of service of such.