Judge: Richard S. Whitney, Case: 37-2022-00003996-CU-PA-CTL, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 21, 2023

12/22/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Auto Discovery Hearing 37-2022-00003996-CU-PA-CTL DOLPHIN VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT CITY OF SAN DIEGO'S AMENDED MOTION TO COMPEL NEUROPSYCHOLOGICAL EXAMINATION OF PLAINTIFF, JEFFREY S. DOLPHIN AND REQUEST FOR SANCTIONS is GRANTED, in part.

Defendant City of San Diego ('Defendant') seeks to compel Plaintiff JEFFREY S. DOLPHIN ('Plaintiff') to submit to examination by Defendant's neuropsychologist Dr. Mark McDonough, including answering background questions, and to sign documents including a HIPAA authorization. CCP section 2032.020 provides, in part: (a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.

(b) A physical examination conducted under this chapter shall be performed only by a licensed physician or other appropriate licensed health care practitioner.

(c)(1) A mental examination conducted under this chapter 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.

(Code Civ. Proc., § 2032.020.) The Court 'shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.' (Code Civ. Proc., § 2032.320.) '[G]ood cause' requires the moving 'party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.' (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) '[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.' (Id. at 839.) It is undisputed that Plaintiff has placed his mental health at issue. Plaintiff agrees to be examined by Defendant's neuropsychologist Dr. Mark McDonough. However, Plaintiff asserts that he should not have to answer background questions that could have been covered during Plaintiff's deposition. The Court disagrees with Plaintiff. Background information, beyond Plaintiff's medical history, could be relevant to Dr. Mark McDonough's evaluation of Plaintiff.

As for Plaintiff's assertion that he cannot be compelled to sign a HIPAA authorization, the Court disagrees. Plaintiff essentially asserts 'a trial court is without jurisdiction to compel a party to perform Calendar No.: Event ID:  TENTATIVE RULINGS

3032665  47 CASE NUMBER: CASE TITLE:  DOLPHIN VS COUNTY OF SAN DIEGO [IMAGED]  37-2022-00003996-CU-PA-CTL acts that are beyond the pale of the discovery act' and that there is no statutory authority for compelling the signing of a release. (Stermer v. Superior Court (1993) 20 Cal.App.4th 777, 781 disapproved of by Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101 on other grounds.) Statutory authority can be found in CCP section 2031.210 where demand for production of documents is authorized. (Code Civ. Proc., § 2031.210.) A motion to compel production for failure to produce requested documents is authorized by CCP section 2031.300. (Code Civ. Proc., § 2031.300.) While these statutes do not explicitly state that a court can order a party to sign a release authorization, it is implicit and such an order would be within the 'pale of the discovery act.' Defendant can compel Plaintiff to produce documents under Plaintiff's control. It is within Plaintiff's exclusive control to produce HIPAA-protected records. Defendant's neuropsychologist Dr. Mark McDonough cannot access the records without authorization from Plaintiff.

This implicit authority in the discovery act to order a party to sign a release authorization is implicitly acknowledged by the court in Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913. In Miranda the court implicitly acknowledged that a party could seek an order that the plaintiff 'cooperate by signing the authorizations for release of the requested records' by finding there was substantial evidence to support the trial court's terminating sanctions for failing to obey a court order to sign a release authorization as to medical records. (Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 929.) If the underlying court order were without jurisdiction, then the appellate court could not have found substantial evidence to justify terminating sanctions based on a failure to comply with a court order to sign a release authorization because it would have been an invalid court order.

The motion is granted. Plaintiff if ordered to submit to a neuropsychological examination with Dr. Mark McDonough on January 4, 2024, at 9:00 a.m., answer background questions at the examination, and execute the standard forms at the examination. No sanctions are awarded.

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