Judge: Robert B. Broadbelt, Case: 21STCV14665, Date: 2025-01-06 Tentative Ruling

Case Number: 21STCV14665    Hearing Date: January 6, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants James Hardie Building Products Inc., Elizabeth Brown, and Steve Nunez

RESPONDING PARTY:       Plaintiff Benjamin Trevino-Rocha

Motion to Compel Mental Examination and for Sanctions

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Defendants James Hardie Building Products Inc., Elizabeth Brown, and Steve Nunez (“Defendants”) move the court for an order (1) compelling plaintiff Benjamin Trevino-Rocha (“Plaintiff”) to submit to a mental examination, to be conducted remotely by Dr. Francine Kulick, Ph.D. (“Dr. Kulick”), and (2) awarding monetary sanctions in favor of Defendants and against Plaintiff in the amount of $7,750.  In the alternative, Defendants request that the court impose evidentiary sanctions against Plaintiff to limit the evidence and testimony that he may introduce at trial relating to his claim for mental and emotional distress damages.

“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 . . . a party to the action . . . 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.”¿ (Code Civ. Proc., § 2032.020, subd. (a).)¿ If any party desires to obtain discovery by a mental examination, the party must obtain leave of court.¿ (Code Civ. Proc., § 2032.310, subd. (a).)¿ “To protect the plaintiff’s privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause.”¿ (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259; Code Civ. Proc., §¿2032.320, subd. (a) [“The court shall grant a motion for physical or mental examination under Section 2032.310 only for good cause shown”].)¿¿ 

            The court grants Defendants’ motion as follows.

            First, the court finds that there is good cause to compel the mental examination of Plaintiff because (1) Plaintiff (i) has alleged that he suffered severe emotional distress as a result of Defendants’ conduct (Compl., ¶ 61), and (ii) has claimed emotional distress damages (Compl., ¶¶ 18, 28, 36, 51, 56, 61, 36), and (2) Plaintiff has stated, in his discovery responses, that he still suffers from “humiliation, depression, embarrassment, anger, mental and emotional distress, and discomfort as a result of Defendants’ unlawful conduct[,]” such that Plaintiff’s mental condition is in controversy in this action.  (Code Civ. Proc., §§ 2032.020, subd. (a), 2032.320, subd. (a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-840 [concluding that the plaintiff’s “mental state is in controversy” since the plaintiff alleged that the defendants caused various mental and emotional ailments]; Hamer Decl., Ex B, p. 42:2-25.) 

The court also notes that Plaintiff (1) has not agreed to stipulate that no claims are being made for mental and emotional distress over and above that usually associated with physical injuries claimed and that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of his claim for damages pursuant to Code of Civil Procedure section 2032.320, and (2) does not appear to dispute that there is good cause to conduct his mental examination, and disputes only the limitations that should be imposed on that examination.  (Hamer Decl., ¶ 6 and Ex. E.)

            Second, the court finds that Defendants’ motion includes all the information required by Code of Civil Procedure section 2031.310, subdivision (b).  (Notice of Mot., pp. 1:14-2:28 [identifying time, place, manner, conditions, scope, and nature of the examination, and the identity and specialty of the examiner (i.e., Dr. Kulick)]; Hamer Decl., ¶¶ 7-14 [meet and confer declaration].)

            Third, the court grants in part Plaintiff’s requests to limit the mental examination as follows.

The court denies Plaintiff’s request that the court order Dr. Kulick to make the recording available to Plaintiff’s counsel within 5 days after the examination because (1) Plaintiff has not shown that such an order is necessary, and (2) Plaintiff has the right to record his mental examination by audio technology, such that Plaintiff may, on his own, record the examination and provide it to his counsel.  (Opp., p. 8:14-16; Code Civ. Proc., § 2032.530, subd. (a).)  Plaintiff also has not shown that an order requiring Dr. Kulick to accommodate reasonable efforts to audio record the examination is necessary in light of Plaintiff’s statutory right to record the examination.  (Opp., p. 8:17-22; Code Civ. Proc., § 2032.530, subd. (a).) 

The court grants Plaintiff’s request to include an order that Dr. Kulick shall not collect from Plaintiff photographs, his fingerprints, or his social security number.  (Opp., p. 8:23-24.)  The court denies Plaintiff’s request that Dr. Kulick shall not collect from Plaintiff his driver’s license in the event that such identification is required before beginning the examination.  (Ibid.)

The court denies Plaintiff’s request to include an order that Plaintiff is not required to fill out any new patient identification forms because Plaintiff has not presented authority, argument, and analysis establishing that such a limitation is necessary.  (Opp., p. 9:1-5.)

The court grants Plaintiff’s request to include an order that Dr. Kulick shall not ask Plaintiff about his sexual history and his monetary goals relating to this lawsuit because (1) the court agrees that Plaintiff’s right to privacy regarding his sexual history outweighs any interest that disclosure serves, and (2) Defendants have agreed that Dr. Kulick will not ask Plaintiff questions regarding those matters.  (Opp., p. 9:9-11; Dr. Kulick Decl., ¶ 10; Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [setting forth framework for evaluating invasions of privacy].) 

The court denies Plaintiff’s request for an order that Dr. Kulick shall ask Plaintiff only about his “employment history with Defendants dating back no further than January 2015 to the present regarding the experiences he was subjected to by Defendants” and only as to “the nature and extent of the mental and emotional distress he claims to have suffered as a consequence of Defendants’ employment practices[.]”  (Opp., p. 9:6-14.)  As set forth above, Plaintiff has placed his mental state in controversy.  The court finds that (1) Plaintiff has not shown that the proposed scope of the examination violates his right to privacy, and (2) the scope of the examination, as set forth in Defendants’ notice of motion, is sufficiently limited and includes topics that are relevant to determining the source of Plaintiff’s claimed mental and emotional damages in this action.  (Notice of Mot., p. 2:7-18; Vinson, supra, 43 Cal.3d at pp. 840 [“by asserting a causal link between [the plaintiff’s] mental distress and [the] defendants’ conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress”]; Williams, supra, 3 Cal.5th at p. 552; Dr. Kulick Decl., ¶ 6 [in order to assess the emotional damages claimed, Dr. Kulick must examine Plaintiff regarding his personal and social history, educational and work history, medical history, and the history of his alleged illnesses].)

The court denies Plaintiff’s request for an order that Dr. Kulick produce to Plaintiff’s counsel any written reports regarding Plaintiff’s examination within 15 days of the date of the examination because (1) Plaintiff has not explained why counsel requires the reports to be produced within 15 days, and (2) Plaintiff may still obtain any written reports setting out the history, examinations, findings, diagnoses, prognoses, and conclusions of the examiner within the earlier of 30 days after service of the demand or within 15 days of trial pursuant to Code of Civil Procedure section 2032.610.  (Opp., Harris Decl., Ex. 1, ¶ 13.)

The court denies Plaintiff’s request for an order that test results (1) be used solely for purposes of this lawsuit and will be shared only with parties to this action, their counsel, and experts or consultants and (2) shall be subject to a protective order, because Plaintiff has not presented argument, authority, and analysis to establish why such a protective order is warranted.  (Opp., Harris Decl., Ex. 1, ¶¶ 14-15.)  The court also denies Plaintiff’s request that the court order that the failure to abide by the terms of the examination shall be grounds to strike the testimony of Dr. Kulick.  (Opp., Harris Decl., Ex. 1, ¶ 17.)

Fourth, the court denies Defendants’ request for monetary and evidentiary sanctions against Plaintiff.  Plaintiff has not failed to submit to a mental examination required by an order of the court (Code Civ. Proc., § 2032.410) and the court has granted two of Plaintiff’s requests to limit the mental examination.    

ORDER

            The court grants defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steve Nunez’s motion to compel mental examination and for sanctions as follows.

            The court orders that Dr. Francine Kulick, Ph.D. shall remotely conduct the mental examination of plaintiff Benjamin Trevino-Rocha on _________________, to be conducted on a videoconferencing platform to be selected by Dr. Francine Kulick, Ph.D., and to begin at 10:00 a.m. and to last up to 7 hours, excluding reasonable breaks.

            At the mental examination, Dr. Francine Kulick, Ph.D. may (1) examine plaintiff Benjamin Trevino-Rocha regarding (i) his past and present psychological condition, (ii) the extent, nature, and cause of any humiliation, depression, embarrassment, anger, mental and emotional distress, discomfort, or psychological injury and the need for past and/or future treatment, (iii) his current mental status and cognitive and emotional function, (iv) the work experiences that plaintiff Benjamin Trevino-Rocha alleges contributed to his emotional distress, (v) any medical or psychological treatment for symptoms of that distress, (vi) plaintiff Benjamin Trevino-Rocha’s experiences between the end of his work at James Hardie Building Products Inc. to the time of his evaluation, as relevant to assess the factors contributing to his emotional distress, and (vii) his past personal history involving his family, significant developmental experiences, educational and occupational history, dating and marital history, litigation history, financial history, and past medical and psychiatric history, and (2) conduct the Minnesota Multiphasic Personality Inventory-2 Test. 

The court orders that Dr. Francine Kulick, Ph.D. shall not (1) ask plaintiff Benjamin Trevino-Rocha any questions regarding his conversations with his counsel, his monetary goals in this action, or his sexual history, or (2) collect from plaintiff Benjamin Trevino-Rocha any photographs, his fingerprints, or his social security number.

            The court denies defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steve Nunez’s request for monetary and evidentiary sanctions against plaintiff Benjamin Trevino-Rocha.

            The court orders defendants James Hardie Building Products, Inc., Elizabeth Brown, and Steve Nunez to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 6, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court