Judge: Michael E. Whitaker, Case: 19STCV23564, Date: 2023-05-18 Tentative Ruling

Case Number: 19STCV23564    Hearing Date: May 18, 2023    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 Bilaal Alvi (Plaintiff) sued Defendant Sun Hill Property, Inc. (Defendant) based on a purported assault of Plaintiff perpetrated by Defendant’s employee while Plaintiff was on the premises of a Hilton Hotel.  Defendant moves for a protective order related to Defendant’s mental examination of Plaintiff by Ari Kalechstein, Ph.D. (Kalechstein).  Plaintiff opposes the motion.  Defendant replies.

ANALYSIS

Foremost, as Defendant acknowledges, there is no provision in the Discovery Act for Defendant to seek a protective order related to a mental examination.  (See, e.g., Code Civ. Proc., § 2032.510.)  Nevertheless, Defendant relies upon Code of Civil Procedure section 2017.020 which states:  “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2017.020, subd. (a).)  Although not squarely on point, the Court will assess Defendant’s motion under Section 2017.020. 

Defendant moves for the Court to issue a protective order which would enforce the following conditions during the court ordered mental examination of Plaintiff: Kalechstein shall take custody of any audio recording obtained by Plaintiff at the time of his mental examination by Kalechstein and deliver the audio recording to Plaintiff’s identified licensed psychologist.   Defendant notes that based on the Court’s December 20, 2022 order, Plaintiff is permitted to audio record the mental examination.  (See December 20, 2022 Minute Order.) 

Defendant argues the need for further limitations on Plaintiff’s ability to record the subject mental examination, as well as Plaintiff’s access to said recording, so that Kalechstein can continue operate within the American Psychological Association (APA) ethical guidelines. 

Defendant advances the declaration of Kalechstein in support of the motion for protective order.  Kalechstein avers to the following:

·         I am informed and believe that Plaintiff Bilaal Alvi is claiming "symptoms of traumatic brain injury." Therefore, he is a candidate for neuropsychological assessment.

·         Plaintiff intends to audiotape the entire neuropsychological evaluation and turn the audio recording over to plaintiff's counsel.

·         As a licensed psychologist and practicing neuropsychologist, I am bound by the Ethical Principals of Psychologists and Code of Conduct set forth by the American Psychological Association (APA) as well as the laws of the State of California governing the conduct of licensed psychologists. A major activity of neuropsychologists is the evaluation of behavior with neuropsychological testing procedures. Psychological and neuropsychological testing offers an objective means of evaluating strengths and weaknesses of performance capacities, as well as characteristics of symptom reporting. Norm-based psychological and neuropsychological tests have normative values collected from individuals with no prior knowledge or exposure to the specific tests. Thus, the validity of all psychological and neuropsychological test instruments is contingent on the novelty of all test items. The naivete of patients/plaintiffs concerning the stimulus materials, test procedures, task demands and content of the tests they are being given is crucial to a valid and informative examination. There are a limited number of standardized psychological and neuropsychological tests that are appropriate for a given purpose. Consequently, when individuals obtain prior knowledge of test item content and procedures, the validity and utility of the measure can be easily compromised, which defeats the intended purpose of the test. Therefore, there is a need to maintain strict test security to protect the uniqueness of those testing procedures.

·         The need to maintain test security to protect psychological test instruments is recognized in the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002/2010, Principle 9.11, Maintaining Test Security), the Standards for Educational and Psychological Testing (American Educational Research Association et al., 1999, Standard 5.7; and 2014, Standards 10.10 and 10.18), the Statement on the Use of Secure Psychological Tests in the Education of Graduate and Undergraduate Psychology Students (American Psychological Association Committee on Psychological Tests and Assessment, 1994), and the International Test Commission (2014) Guidelines on the Security of Tests, Examinations, and Other Assessments. The importance of test security is further discussed in various position statements for psychological organizations, including the American Psychological Association (1999), and the National Association of School Psychologists (2000).

·         From time to time, neuropsychologists receive requests from attorneys to audio tape testing sessions. However, audiotaping a psychological or neuropsychological evaluation for release to a non-psychologist, i.e., someone not trained or qualified to interpret the data, violates the Ethical Principals of Psychologists and Code of Conduct by potentially placing confidential procedures in the public domain (APA Principle 2.10) and by making tests available to persons unqualified to interpret them (APA Principle 2.02 and 2.06). Such requests can also place the psychologist in potential conflict with state laws regulating the practice of psychology. For example, I am bound by the 2022 California Board of Psychology Laws and Regulations, §1396.3, which requires I take steps to limit access to test material and data only to other licensed psychologists who have a professional interest to safeguard their use, thus precluding me from releasing test material or testing data to non- psychologists. Based on my training and understanding, the law is very clear on this issue, with the prohibition against revealing to non psychologists of 'test material and data' clearly applying to an audio-recording of the orally administered testing done during an IME, as well as any later requests for raw data relating to the IME. This is so because the testing to be administered unequivocally depends, as set forth in the statute, on the naivete of the subject.

(Declaration of Ari Kalechstein, Ph.D., ¶¶ 6, 9-12.)  Defendant explains that it has no objection to Plaintiff recording the interview portion of the examination.  However, Defendant seeks to implement safeguards concerning the handling of the Plaintiff’s audio recording of the orally administered neuropsychological tests.  Defendant concludes if the protective order is not issued, Kalechstein will withdraw from performing Plaintiff’s mental examination, resulting in prejudice to Defendant.  

Pursuant to Code of Civil Procedure section 2032.530, subdivision (a), “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.”  The Court observes that the California Legislature did not prescribe any limitations on the audio recording by either an examiner or examinee vis-à-vis a mental examination, and that Defendant failed to cite to any controlling authority indicating that an audio recording of a mental examination as authorized by the Discovery Act,  be controlled by compelling the examinee, Plaintiff, to tender the audio recording to the examiner, Kalechstein, for handling.  Anyhow, the Court finds Golfland Entertainment Centers, Inc. v. Superior Court to be instructive.   

Nothing in the applicable statute suggests that the right of the examiner or examinee is limited to recording only selected parts of the examination.  Further, recording only the examinee's responses would defeat the main purposes of the audiotaping, which are to ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee's interests are protected (especially since the examinee's counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court.

(Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 750, citation omitted.)   

CONCLUSION AND ORDER

Based on the foregoing, the Court finds that Defendant has not demonstrated that the Plaintiff’s audio recording of the entire subject mental examination would result in any undue burden, expense, or intrusiveness.  Accordingly, the Court denies Defendant’s motion for protective order.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.