Judge: Monica Bachner, Case: 18STCV08528, Date: 2022-08-24 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 18STCV08528    Hearing Date: August 24, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants City of Los Angeles and Ta’ana Mitchell’s motion to compel independent medical examination of Plaintiff James Sharlein is granted.  

          Defendants City of Los Angeles (the “City”) and Ta’ana Mitchell (“Mitchell”) (collectively, “Defendants”) move to compel the independent mental examination (“IME”) of Plaintiff James Sharlein (“Plaintiff”), contending that there is good cause for the motion because Plaintiff has placed his mental condition in controversy. (Notice of Motion, pg. 2:7-10.)

          “Unless otherwise limited by order of the court …, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action …, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (C.C.P. § 2017.010.)

          Where any party seeks to obtain discovery by a mental examination, the party shall obtain leave of the court. (C.C.P. § 2032.310(a).) The Court shall grant the motion only for good cause shown. (C.C.P. § 2032.320(a).)

Meet and Confer

Defense counsel states that Defendants initially served a Demand for Mental Examination on Plaintiff on October 26, 2021. (Notice of Motion, declaration of Christopher Cadena (“Cadena Decl.”), ¶ 8.) At the Informal Discovery Conference with the Court on December 17, 2021, Plaintiff agreed to sign a form authorizing Dr. Froehlich to produce Plaintiff’s medical records to the City. (Cadena Decl., ¶ 9.) Plaintiff produced the signed authorization. (Cadena Decl., ¶ 9.) After the Defendants’ process server made several unsuccessful attempts at serving Dr. Froehlich with a subpoena, Dr. Froehlich responded to the subpoena around June 22, 2022, stating that he had no responsive documents. (Cadena Decl., ¶ 9; Ex. 5.) Therefore, on June 16, 2022, Defendants sent Plaintiff correspondence requesting the latter to stipulate to an IME. (Cadena Decl., ¶ 10; Ex. 6.) When Plaintiff did not respond to that correspondence, Defendants served a renewed Demand for Independent Medical Examination on July 19, 2022. (Cadena Decl., ¶ 10.)

Plaintiff does not dispute that the parties met and conferred concerning the Defendants’ IME request.

Accordingly, the Court finds that Defendants have satisfied the meet and confer declaration requirement.

Separate Statement Requirements

As an initial matter, Plaintiff argues that the Court should deny the Defendants’ motion because Defendants did not file a separate statement. (Opposition, pg. 7:15-18.)

“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c).)

A motion for “medical examination over objection” must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a).)

Defendants concede that they did not file a separate statement but argue that they were not required to do so because Plaintiff did not serve a response (or an objection) to the demand for an IME. (Reply, pg. 5:20-25.) However, they state that they have nonetheless filed a separate statement along with their reply for the Court’s convenience. (Reply, pg. 5:25-27.)

Defendants’ separate statement filed on August 16, 2022, explains the medical examination at issue, Plaintiff’s objections to the examination, and why there is good cause to compel the examination. Accordingly, the Court finds that Defendants have satisfied the requirements of California Rules of Court, rule 3.1345(a).

Good Cause

Defendants contend that there is good cause to compel Plaintiff’s IME because Plaintiff placed his mental state in controversy through the Second Amended Complaint (“SAC”) and responses to discovery requests. (Motion, pg. 4:18-19.) For example, in the SAC, Plaintiff alleges that as a result of Defendants’ harassment, he “has sustained and will continue to sustain . . . mental and emotional injuries, pain, distress, suffering, anguish, fright nervousness, grief, anxiety, worry, shame, mortification, injured feelings, shock, humiliation and indignity, as well as other unpleasant physical, mental, and emotional reactions.” (Motion, pg. 4:19-24 [emphasis removed].) Moreover, in his responses to the Defendants’ form interrogatories, Plaintiff repeated that he suffers from those conditions and revealed that he was seeking treatment for stress from Dr. Steven Froehlich (“Dr. Froehlich”). (Motion, pg. 5:1-10.) However, Plaintiff and Dr. Froehlich have repeatedly failed to produce medical records concerning Plaintiff’s alleged emotional distress. (Motion, pg. 6:9-12.) Therefore, the proposed IME serves as the only means Defendants can obtain discovery to evaluate the causes, nature, and extent of Plaintiff’s emotional damages. (Motion, pg. 7:11-13.)

In opposition, Plaintiff contends that Defendants have failed to establish good cause because Plaintiff has not alleged (1) a cause of action for negligent or intentional infliction of emotional distress or (2) that he is suffering from “severe” mental or emotional distress “requiring medical intervention, or any psychiatric illness ….” (Opposition, pg. 12:2-7.) “Rather, [he] has consistently maintained throughout this litigation that his mental and emotional injuries are the type that a normal person would suffer as a result of the hostile, discriminatory, and retaliatory conduct of defendants, and is willing to so stipulate.” (Opposition, pg. 12:7-10 [emphasis added].) Indeed, Plaintiff offered to stipulate under C.C.P. § 2032.020 that (1) he was not making any claim for mental and emotional distress over and above that is usually associated with the physical injuries claimed and (2) no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages. (Opposition, pg. 7:2-6.)

Plaintiff also argues that federal courts, addressing the application of Federal Rules of Civil Procedure, Rule 35 (the rule that C.C.P. § 2032.010, et seq. is based), have concluded that “garden variety” emotional distress allegations do not justify an IME. (Opposition, pg. 12:15-19.) Plaintiff contends that he has only alleged a “garden variety” of emotional distress allegations. (Opposition, pg. 12:18.)

In reply, Defendants argue that as their proposed examiner David K. Wellisch, Ph.D. (“Dr. Wellisch”) states in his declaration, Plaintiff alleges emotional harm that constitutes serious psychiatric injuries, not just a “garden variety” of damages. (Reply, pg. 3:4-15; Notice of Motion, filed July 19, 2022, Cadena Decl., Ex. 8 – the declaration of David K. Wellisch, Ph.D. (“Wellisch Decl.”), ¶ 5 [“My review of Plaintiff’s operative complaint and discovery responses in this case indicates that he alleges that the City caused him both anxiety and other emotional injuries. In my experience traumatically induced anxiety and depression are serious psychiatric injuries that cannot properly be characterized as ‘usual’ or ‘garden variety’ emotional distress damages”].)

Defendants additionally argue that a stipulation under C.C.P. § 2032.020 would not apply here because there are no “physical injuries claimed.” (Reply, pg. 3:20.) “Rather, [Plaintiff’s] mental and emotional distress is associated [sic] the City’s alleged harassment, discrimination, and retaliation.” (Reply, pg. 4:1-2.)

The California Supreme Court in Vinson v. Superior Court (1987) 43 Cal.3d 833 (“Vinson”) held that “a party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson, supra, 43 Cal.3d at p. 839.)

In Vinson, the plaintiff applied for a job in which the interviewer commented on how attractive she appeared to be for a woman her age, made some observations regarding her anatomy, and expressed his desires with regard thereto. (Vinson, supra, 43 Cal.3d at p. at p. 837.) After the plaintiff was hired to work on a program, the interviewer transferred her to the payroll unit, a position for which he apparently knew she had no training, and soon thereafter terminated her employment. (Ibid.) The plaintiff sued on several causes of action, including “sexual harassment, wrongful discharge, and intentional infliction of emotional distress,” alleging that the defendants’ “actions … caused her to suffer continuing emotional distress, loss of sleep, anxiety, mental anguish, humiliation, reduced self-esteem, and other consequences.” (Ibid. [emphasis added].)

The Supreme Court found that the Vinson plaintiff had placed her mental condition in controversy by “accus[ing] [the defendants] of various mental and emotional ailments” and “asserting a causal link between her mental distress and defendants’ conduct.” (Vinson, supra, 43 Cal.3d at pp. 839-840.)

However, “[d]etermining that the mental or physical condition of a party is in controversy is [only] the first step in our analysis.” (Vinson, supra, 43 Cal.3d at p. 840.) A “court may grant the motion only for good cause shown.” (Ibid.)

In Vinson, the Supreme Court found there was good cause to compel the plaintiff’s IME because she alleged that she “continues to suffer diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation, and severe emotional distress.” (Vinson, supra, 43 Cal.3d at p. 837.) Moreover, “the truth of [those] claims [were] relevant to plaintiff’s cause of action and justifying facts [had] been shown with specificity ….” (Ibid.)

          Here, Plaintiff accuses the Defendants of causing various mental and emotional ailments like the plaintiff in Vinson. Plaintiff alleges that he was “subjected to severe and/or pervasive sexual harassment based upon his protected sex/gender status as a male by defendant Mitchell ….” (SAC, ¶ 71.) Moreover, as a result of the Defendants’ conduct, Plaintiff “suffered sustained and will continue to sustain physical, mental, and emotional injuries, pain, distress, suffering, anguish, fright, nervousness, grief, anxiety, worry, shame, mortification, injured feelings, shock, humiliation and indignity, as well as other unpleasant physical, mental, and emotional reactions.” (SAC, ¶ 97 [emphasis added].) Indeed, “[t]he harassing conduct was [so] severe, physically and emotionally threatening … [that it] unreasonably interfered with plaintiff’s work performance ….” (SAC, ¶ 58.) Plaintiff also repeated in his responses to the Defendants’ interrogatories that he suffered “mental … pain, suffering, agony stress, fright, nervousness, grief, anxiety, worry, mortification, shock …, and distress …” as a result of the Defendants’ conduct. (Notice of Motion, Ex. 1 – Responses to Interrogatories, p. 57:2-5.) Plaintiff also stated that he suffers from “depression.”  (Notice of Motion, Ex. 2, p. 12:20.) By alleging that he suffered and continues to suffer mental “and” emotional injuries, Plaintiff suggests that those are two different types of non-economic damages.

Therefore, in light of Plaintiff’s discovery responses that he suffered and continues to suffer “mental” injuries, the Court finds that Plaintiff has placed his mental condition in controversy.

          The Court also finds the truth of Plaintiff’s allegations (e.g., that he suffers from depression as a result of the Defendants’ conduct) relevant to his causes of action (e.g., concerning how “severe and/or pervasive” Defendants’ alleged sexual harassment was).

Accordingly, the Court finds that the Defendants have shown good cause to compel the IME.

Required Specifications of the Proposed IME

Notwithstanding the above findings, a motion for an examination must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination. (C.C.P. § 2032.310(b).)

          Here, the Defendants provided the time and place of the proposed IME. They contend that it was to take place on August 18, 2022, at 9:00 a.m., at 450 N. Bedford Dr., Suite 310, Beverly Hills, CA 90210. (Motion, pg. 8:13-14.) Should the Court grant the motion, the Court will ask the parties to meet and confer concerning a date for the IME.

Defendants have also provided the manner, conditions, and nature of the IME. They contend that the examination will span six to eight hours, excluding breaks. (Motion, pg. 8:2-3.) It will not include painful, protracted, or intrusive tests or procedures. (Motion, pg. 8:3-4.) It will consist of a detailed psychiatric interview, mental status examination, and standardized, validated psychological testing. (Motion, pg. 8:4-6.) Moreover, the IME will be performed by Dr. Wellisch, and only Dr. Wellisch and Plaintiff will be present at the examination. (Motion, pgs. 7:24; 8:14.) Dr. Wellisch will memorialize the examination with a digital audio recording device. (Motion, pg. 8-14-15.)

Plaintiff argues that “Dr. Wellisch is not a licensed psychiatrist or a licensed physician and could not conduct such a ‘psychiatric interview’ under any circumstances, nor could he perform a ‘medical examination’ ….” (Opposition, pgs. 7:21-8:1.)

The Court disagrees. “A mental examination shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” (C.C.P. § 2032.020(c)(1) [emphasis added].) Here, Dr. Wellisch testifies he is a Clinical Psychologist licensed to practice in California. (Wellisch Decl., ¶ 1.) He received his Ph.D. in Clinical Psychology from the University of Houston in 1975 and has over 40 years of clinical and teaching experience in psychiatry. (Wellisch Decl., ¶ 2 [providing that attached as Exhibit A to his declaration is a true and correct copy of his curriculum vitae]; Ex. A, p. 1.) Therefore, Dr. Wellisch is qualified to conduct the proposed IME under C.C.P. § 2032.020(c)(1).

Dr. Wellisch attests to the following concerning the “scope” of the IME.

The IME will consist of “a psychiatric examination portion ….” (Wellisch Decl., ¶ 6.) The psychiatric examination will involve observing Plaintiff and taking details of Plaintiff’s history, including Plaintiff’s demographic details, current complaints for which he might seek care, the history of illnesses (including subjective experience of events leading to psychiatric damages), development of psychiatric and physical symptoms, what treatments Plaintiff received, and the effect of those treatments on his symptoms. (Wellisch Decl., ¶ 6.) Dr. Wellisch will “gather important development information concerning their family of origin, psychiatric and medical difficulties within that family, their educational background, their work history, and their social development history ….” (Wellisch Decl., ¶ 7.)

The IME will also consist of a “standard, validated series of psychological tests.” (Wellisch Decl., ¶ 6.)

Dr. Wellisch states that he will administer a “battery” of tests “including” the Personality Assessment Inventory and the Minnesota Multiphasic Personality Inventory-2-RF. (Wellisch Decl., ¶ 9.) Moreover, if more tests need to be administered on the day of the IME based on the psychiatric examination findings, he will notify the parties. (Wellisch Decl., ¶ 9.)

However, the Court shares Plaintiff’s concern regarding the Defendants’ failure to provide the exact psychological tests Plaintiff will have to undergo.

 C.C.P. “section 2032.320 requires the trial court [in the order granting a motion to compel an IME] to list by name the diagnostic tests and procedures to be employed in the mental examination.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 269 (“Carpenter”) [emphasis added].) Therefore,

For example, in Carpenter, the Court of Appeal found that the [trial court’s] order did not comply with section 2032.320 because “[t]he order did not set forth the names of the tests.” (Ibid.) Moreover, it was not enough for the trial court to order the plaintiff to submit to “standardized” written psychological tests because “the record [did not] demonstrate that ‘standardized written psychological tests’ for evaluating ‘emotional and cognitive functioning’ [had a] … precise and finite a meaning in the mental health profession [so] as to be the functional equivalent of a list of specific tests.” (Ibid.)

Here, like the defendants in Carpenter, Defendants fail to set forth the names of all psychological tests that Plaintiff will have to undergo in the IME. The Court orders that “ the parties shall meet and confer concerning the specific tests that …[the] examiner may employ, with any remaining disputes to be resolved by the trial court.” (See Carpenter, supra, 141 Cal.App.4th at p. 270.)

Accordingly, the Court grants the motion.

Conclusion

          For the reasons set forth above, the motion to compel Plaintiff’s independent medical examination is DENIED.

Dated:  August _____, 2022

Hon. Monica Bachner

Judge of the Superior Court