Judge: Michael E. Whitaker, Case: 19STCV33836, Date: 2022-09-12 Tentative Ruling

Case Number: 19STCV33836    Hearing Date: September 12, 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

Plaintiffs Mia Pano (“Pano”), a minor, by and through her Guardian ad Litem, Rosa Abarca Astudillo, and Rosa Abarca Astudillo (collectively, “Plaintiffs”) sued defendant City of Los Angeles based on injuries Plaintiffs allege they sustained when Pano was struck by a tree branch in a public park owned and controlled by Defendant.  Defendant moves to compel a mental examination of Pano by Maria Lymberis, M.D. (“Lymberis”) who is a psychiatrist.  Plaintiffs oppose the motion.

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.)

            I. “In Controversy”

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.)  However, a plaintiff’s mental condition is not “in controversy” when the plaintiff merely alleges past emotional distress.  (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887.)  A plaintiff’s mental condition is also not “in controversy” when the plaintiff merely alleges “garden variety” emotional distress.  When a plaintiff alleges “garden variety” emotional distress, federal courts^[1] require a defendant to additionally show one or more of the following: (1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury; (3) a claim of unusually severe emotional distress; (4) plaintiff’s plan to offer expert testimony to support a claim of emotional distress; (5) plaintiff’s concession that his or her mental condition is “in controversy.”  (Turner v. Imperial Stores (S.D.Cal. 1995) 161 F.R.D. 89, 95; see also Ford v. Contra Costa County (N.D.Cal. 1998) 179 F.R.D. 579, 580; Snipes v. United States (N.D.Cal. 2020) 334 F.R.D. 667, 669-671.)

A federal court found that a plaintiff did not place her mental condition “in controversy” by seeking damages for “humiliation, mental anguish, and emotional distress.”  (Turner v. Imperial Stores, supra, 161 F.R.D. at p. 98.)  In Turner, the plaintiff alleged that her employer discriminated against, and wrongfully terminated, her based on race and gender.  (Id. at p. 90.)  The plaintiff sought damages for breach of contract, loss of earnings, loss of employment benefits, etc.  (Ibid.)  The plaintiff also sought damages for “‘humiliation, mental anguish, and emotional distress in an amount exceeding one million dollars.’”  (Ibid.)  The court denied the defendants’ motion to compel a mental examination of the plaintiff, finding that the plaintiff did not place her mental condition “in controversy.”  (Id. at p. 98.)  The court explained that the plaintiff’s “claim for damages for emotional distress [was] basically a ‘garden-variety’ one,” and that none of the five factors were met.  (Id. at pp. 97-98.)  The court also pointed out that the defendants failed to provide any legal authority to support their contention that the amount of damages claimed for emotional distress alone could justify a court-ordered mental examination.  (Id. at p. 97.)

On the other hand, a federal court found that a plaintiff placed her mental condition “in controversy” by alleging specific mental injuries such as suicidal ideation, severe depression, withdrawal, hallucinations, insomnia, constant fatigue, low self-esteem, low motivation, and social discomfort.  (Greenhorn v. Marriott Intern., Inc. (D.Kan. 2003) 216 F.R.D. 649, 651.)  In Greenhorn, the plaintiff asserted claims for sexual harassment, criminal sexual battery, assault and battery, invasion of privacy, and intentional infliction of emotional distress.  (Id. at p. 650.)  The plaintiff alleged that she sustained “‘lasting and permanent emotional injury in the form of emotional trauma causing insomnia, severe depression, avoidance, withdrawal, suicidal ideation, suspiciousness, social discomfort, low self-esteem, and resentfulness.’”  (Id. at p. 651.)  She further alleged that she suffered from fear and apprehension of offensive physical touching, constant fatigue, low motivation, diminished organization skills, and hallucinations causing her to see the face of the defendant on a relatively frequent basis.  (Ibid.)  She sought damages for future medical expenses.  (Ibid.)  The court granted the defendants’ motion to compel a mental examination of the plaintiff, finding that the plaintiff placed her mental condition “in controversy.”  (Id. at pp. 651-652.)  The court found that the plaintiff’s “allegations reflect[ed] plaintiff’s contention that she has suffered specific injuries caused by defendants’ conduct and reveal[ed] that plaintiff’s claim for emotional distress [was] not simply a ‘garden variety’ claim for emotional distress.”  (Id. at p. 651.)  The court noted that plaintiff’s “allegations [were] specific, detailed and plainly identif[ied] particularized injuries.”  (Id. at p. 651, fn. 3.)

Other federal courts have made similar findings.  (See E.E.O.C. v. Serramonte (N.D.Cal. 2006) 237 F.R.D. 220, 222, 225 [quashing the defendants’ subpoenas for medical records because the plaintiff did not place her mental condition at issue by seeking damages for “emotional distress, indignity, loss of enjoyment of life, loss of self-esteem, and humiliation”]; Houghton v. M & F Fishing, Inc. (S.D.Cal. 2001) 198 F.R.D. 666, 667, 669-670 [denying the defendants’ motion to compel a mental examination because the plaintiff did not place his mental condition at issue by seeking damages for emotional distress “normally associated with or attendant to the suffering of or recovery from a physical injury”]; Fritsch v. City of Chula Vista (S.D.Cal. 1999) 187 F.R.D. 614, 632, 635 [quashing the defendants’ subpoenas for medical records because the plaintiff did not place her mental condition at issue by seeking damages for emotional distress that were “within the everyday experience of the average juror” and did not “exceed the suffering and loss an ordinary person would likely experience in similar circumstances”]; Flores-Febus v. MVM, Inc. (D.P.R. 2014) 299 F.R.D. 338, 340 [granting the defendant’s motion to compel a mental examination because the plaintiff placed her mental condition “in controversy” by alleging specific mental injuries such as depression, insomnia, anxiety, headaches, weight loss, loss of appetite, loss of self-esteem, loss of energy, pessimism, and difficulties in concentration]; Snipes v. United States, supra, 334 F.R.D. at p. 670 [compiling cases where courts have found that the plaintiffs placed their mental conditions “in controversy” by alleging specific mental injuries such as suicidal ideation, post-traumatic stress disorder, depression, chest pain, high blood pressure, headaches, anxiety, paranoia, insomnia, inability to focus, low self-esteem, and social discomfort].)

II. “Good Cause”

There is “good cause” for a mental examination when the defendant “produce[s] specific facts justifying [the mental examination]” and when the mental examination is “relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.”  (Vinson v. Superior Court, supra, 43 Cal.3d at p. 840.)  The “good cause” requirement checks for unnecessary intrusions and potential harassment by defendants against plaintiffs who have placed their mental conditions in controversy.  (See Carpenter v. Superior Court, supra, 141 Cal.App.4th at p. 259; Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255; Vinson v. Superior Court, supra, 43 Cal.3d at p. 840.)

Here, Pano contends she suffers anxiety and post-traumatic stress disorder as a result of the incident. (See Declaration of Steven N. McGuire, Exhibit D.)  Defendant thus argues that Pano has placed her mental condition in controversy.

In opposition, Plaintiffs argues Defendant has failed to show good cause for a mental examination of Plaintiff.  Specifically, Plaintiffs argue Pano has already submitted to a mental examination with Defendant’s psychologist, Roger Light, Ph. D., and Defendants have not shown the need for a second mental examination based on Pano’s complaints of anxiety and post-traumatic stress disorder. 

Plaintiffs also argue that a second examination with a psychiatrist is unnecessary because Pano does not intend to call a psychiatrist during her case in chief.  Plaintiffs also argue that the motion is procedurally defective under Code of Civil Procedure section 2032.310 (b), for failure to state the manner, conditions, scope and nature of the examination.  Under Section 2032.310(b), a “motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination[.]”  (Code Civ. Proc., § 2032.310, subd. (b).)  The Court therefore finds Plaintiffs’ objection based on the failure of such information to be stated specifically in the notice of the motion rather than the motion itself to be without merit.

Although the Court finds Pano’s complaints of anxiety and post-traumatic stress disorder as a result of the incident place her mental condition in controversy, Defendant has not established good cause for a second mental examination by Lymberis especially when Pano has previously submitted to a mental examination by Dr. Light and does not intend to proffer at the time of trial expert testimony from a retained psychiatrist.   

CONCLUSION AND ORDER

Therefore, the Court denies Defendant’s motion to compel Plaintiff to submit to a mental examination by Lymberis without prejudice.  Defendant shall provide notice of this ruling and file a proof of service of such.