SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Juana Alejos Camacho (“Plaintiff”) filed this action against Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) for damages arising from a fall on Defendant’s bus when the bus accelerated. Plaintiff alleges she struck her head as a result of the incident.¿ 

Defendant now moves for an order compelling Plaintiff to appear for a mental examination with James E. Rosenberg, M.D. (“Dr. Rosenberg”) and Ari Kalechstein, Ph.D. (“Dr. Kalechstein”). Further, Defendants move for an order that Dr. Kalechstein be permitted to retain any audio recordings made of the testing and deliver copies only to a licensed California psychologist of Plaintiff’s designation.  

Plaintiff opposes the motion, and the Defendant filed a reply.    

 

II. Request for Judicial Notice 

Defendant’s request for judicial notice is unsigned. Nonetheless, the requests seeking judicial notice of motions filed in Ellensohn v. City of Burbank, Case No. BC648515 are denied.  

 

III. Motion to Compel the Defense Mental Examination and Custody of Audio Recordings 

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).)   

Here, the Court previously found good cause for the mental examination sought with Dr. Roseneberg and Dr. Kalechstein, and ordered Plaintiff to appear for her examination. (Min. Order, July 7, 2022.) Plaintiff agreed to undergo a mental examination, and thus this is not at issue.   

At issue is only the dispute of Plaintiff retaining custody of her own recording and providing the recording to her counsel. CCP § 2032.530(a) provides, “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” Defendant does not dispute that Plaintiff has the right to record. As provided in Golfland Entertainment Ctrs., Inc. v. Sup.Ct. (2003), 108 Cal.App.4th 739: 

The mental examination statute, section 2032, subdivision (g)(2), states in relevant part: “The examiner and examinee shall have the right to record a mental examination on audio tape.” At the hearing, the trial court explained that it was ordering the recording of David's statements, but not Dr. Epperson's, because “[t]hat's what the Code says, by my reading.” The trial court's reading of the Code was incorrect. 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. (See Vinson, supra, 43 Cal.3d 833, 846, 239 Cal.Rptr. 292, 740 P.2d 404.)¿ 

(Id. at 750.)¿¿¿ 

Defendant argues the recording of the psychological testing and dissemination to non-licensed professionals is against the California Code of Regulations § 1396.3 imposed upon California forensic psychologists, which 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.” Defendant also contends the AACN official position also provides that psychological and neuropsychological tests must be protected to preserve the validity of the tests and the validity of the profession’s science. 

In Carpenter v. Superior Ct., 141 Cal. App. 4th 249, the appellate court declined to address whether disclosure of the test questions and Plaintiff’s responses would violate the examiner’s ethical and professional obligations in reference to the APA Ethical Standards, because the materials were not presented to the trial court. “The fact that section 2032.530 permits the mental examination to be audiotaped, however, does not provide statutory authority for compelling the examiner to provide a copy of the written test questions and answers.” (Id. at 271.) However, although there is no express statutory authority, “neither is there statutory authority precluding a trial court, in its discretion, from ordering the disclosure of the written test questions and answers.” (Ibid.) Therefore, the appellate court decided it would be “remanding the matter for the trial court to decide the issue anew, the court may consider at that time the parties' arguments regarding the examiner's ethical and professional obligations.” (Id. at p. 275) The appellate court recognized the trial court has broad discretion in discovery matters, and has the discretion to order the disclosure of such materials even if no statute authorizes it.  

Defendant here relies primarily on Mark Ellensohn v. City of Burbank, et al., 2022 Cal. Super. LEXIS 37210 and Randy’s Trucking, Inc. et al. v. Superior Court, (2023) 91 Cal.App. 5th 818. The Ellenson case was decided by Judge Ralph Hofer in Department D of the Glendale Courthouse recently in June 2022. Trial court rulings have no precedential value. (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.)  

Randy’s Trucking, Inc. et al. v. Superior Court, (2023) 91 Cal.App. 5th 818 is a recently published decision from the Court of Appeal. Decisions of every division of every district of the CA Courts of Appeal are binding on all Superior Courts in California. (Auto Equity Sales, Inc., 57 Cal. 2d 450, 455.) Where there is a split of authority, the trial courts have discretion to choose between the decisions.  (Id. at 456.) Defendants contend the court in Randy’s Trucking determined there was no evidence before the trial court that another neuropsychologist would not be available, but did not say that such evidence would not be probative if not offered. Defendants argue that they have produced enough evidence that no neuropsychologist would be available who would produce raw testing materials directly to Plaintiff’s counsel.  

Weighed against Plaintiff’s right to take discovery and cross-examine defendants’ expert witnesses, Randy’s Trucking found that the trial court did not abuse its discretion in ordering transmission of raw data and audio recording to plaintiff’s attorney subject to a protective order addressing concerns of test security and integrity.  More specifically, the court found that the expert did not provide sufficient evidence to outweigh Plaintiff’s need for the materials and the need of the expert from violating her ethical and professional obligations for the following reasons: 

"While Dr. Victor explained the dangers associated with TPO, she did not explain why a protective order would not ameliorate those dangers. She also did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs' attorney subject to a protective order. Dr. Victor identified numerous standards in the APA Ethical Standards by number which she claimed could be violated if TPO were allowed, but Dr. Victor did not explain the potential violations and the APA Ethical Standards were not submitted to the trial court."  

(Randy’s Trucking, Inc. et al. v. Superior Court, supra, 91 Cal.App. 5th at 837–38.) 

However, although Dr. Kalechstein’s declaration appears to directly address the defects identified by the Randy’s Trucking court, Plaintiff here does not have a licensed psychologist nor does Plaintiff intend to retain a licensed psychologist to receive the audio recordings of the test.  Further, the parties have alternative ways to protect confidential materials and safeguard its use, which are often a part of discovery and litigation, such as Plaintiff’s proposal that the recordings will be kept confidential and destroyed once litigation and any statutory period for preservation of evidence has expired. Additionally, Defendant has not provided sufficient evidence it would be deprived of a neuropsychologist in that no neuropsychologist would produce the raw testing materials.1 Here, at issue is just the audio recordings of the examination, not any or all raw data or raw testing material.  

Finally, Defendant argues on reply that the “only order that is just in this circumstance can be one that permits LACTMA to go forward with a defense mental examination that will otherwise be unavailable because of the clash between the silence of the Code of Civil Procedure on protecting ethical duties of licensed psychologists and their very concisely worded regulations requiring that protection.” (Reply, p. 9, lines 16-20.) Defendant accurately identifies that the Code of Civil Procedure does not address this “clash.” However, the Court cannot read something into the law that is not there. Although Defendant questions why Plaintiff has decided not to compromise in this case, when parties have historically compromised on this issue, that history of compromise around the legislation is not something that this Court can use to determine the outcome of this motion. The dilemma Defendant identifies may be addressed with the legislature. Here, the statute expressly provides Plaintiff the right to audio record her examination, and nothing in the statute requires that the audio recording only be exchanged between experts.  

Based on the foregoing, the Court finds Defendant has not provided sufficient evidence to outweigh Plaintiff’s need for the audio recordings.  

 

IV. Conclusion 

Accordingly, Defendant’s motion is denied. 

 

Moving party is ordered to give notice.   

 

 

Footnotes: