Judge: Ronald F. Frank, Case: BC667499, Date: 2024-03-19 Tentative Ruling
Case Number: BC667499 Hearing Date: March 19, 2024 Dept: 8
Tentative Ruling¿¿
¿¿¿
HEARING DATE: March 19, 2024
¿¿¿
CASE NUMBER: BC667499
¿¿
CASE NAME: Jane IL Doe v.
Brightstar Residential Incorporated, Inc., et al.
¿¿ ¿¿¿
MOVING PARTY: Defendants, Brightstar Residential Inc.,
Norlan Machado (Doe 1), and Mary Machado (Doe 2)
¿¿¿
RESPONDING PARTY: Plaintiff,
Jane IL Doe, by and through her guardian ad litem Tomoya E. Ishimaru
TRIAL DATE: Not Set
¿¿¿
MOTION:¿ (1) Motion to Compel
Independent Psychological Examination of Plaintiff
Tentative Rulings: (1) CONTINUED
(2) The Court intends to set a TSC for the same date
as the continued hearing on this motion
I. BACKGROUND¿¿¿
¿¿¿
A. Factual¿¿¿
¿¿¿
On July 7, 2017,
Plaintiff, Jane IL Doe, by and through her guardian ad litem, Tomoya E.
Ishimaru, filed a Complaint against Defendants, Brightstar Residential
Incorporated, Inc., Reuben Alcala, and DOES 1 through 100. Subsequently,
Defendant Norlan Machado was named as substituted for DOE 1, and Mary Machado
was substituted for DOE 2. Plaintiffs brought this action against Reuben
Alcala, a handyman who allegedly sexually molested Jane Doe in 2016 at a
residential facility for disabled adults run by Brightstar, a corporation owned
and managed by Mary and Norlan Machado. Doe has alleged causes of action for
sexual assault against Alcala and claims against Brightstar for negligent
hiring, supervision, and retention of Alcala.
Moving
Defendants, Brightstar, Mary Machado, and Norlan Machado, now file a Motion to
Compel Independent Psychological Examination of Plaintiff, asserting that
because Plaintiff is claiming extensive injury and impairment as a result of
the subject incident, it is crucial Defendants are able to thoroughly examine
Plaintiff’s various alleged injuries. Moving Defendants note that they
scheduled a medical examination with clinical and forensic psychologist, Stan
J. Katz, Ph.D., originally in 2019, and again more recently following an appeal
on a summary judgment motion that had been previously granted but reversed and
remanded. Moving Defendants note that their counsel has met and conferred with
Plaintiff’s counsel, and that Plaintiff’s counsel has objected, without
reaching any agreement for the proposed examination.
As such, Moving
Defendants argue that because the nature and scope of the injuries claimed, and
the alleged continuing nature of her complaints, good cause exists for the
Court to order the requested mental examination of Plaintiff, and the
examination is needed in order for Defendants to evaluate the case and prepare
for trial.
B. Procedural¿¿¿
¿¿
On January 24, 2024, Moving
Defendants filed this Motion to Compel Independent Psychological Examination of
Plaintiff. On March 6, 2024, Plaintiff filed an opposition brief. On March 12,
2024, Moving Defendants filed a reply brief. Previously, the case was on appeal for approximately
28 months, which Plaintiff’s counsel Ms. Nolan calculated in her December 18,
2023 declaration as translating to a stay period of 857 days. The appeal resulted in a published opinion of
the Second District Court of Appeal, reversing a summary judgment granted to the
defense by Judge Hill. (Jane
IL Doe v. Brightstar Residential Inc. (2022) 76 Cal.App.5th
171.) The Court of Appeal held that the
trial court had erred in ruling Brightstar owed Doe no duty, in concluding Doe could
not establish breach and causation, and in finding an absence of material disputed
facts about whether keeping Alcala at Brightstar breached this duty and caused Doe's
injuries. (Id. at p. 185.)
There is currently no trial nor FSC date,
and given the transfer of this case from Torrance to Inglewood the Court will
conduct a Trial Setting Conference in the near future given its 2017 filing
date and over 2-1/2 years of accumulated pendency before the appeal plus
another 1-1/2 years since the remittitur was issued.
II. ANALYSIS¿¿
A. Legal Standard
A court order is
required¿to obtain a party’s mental examination. (Code Civ. Proc. §
2032.310(a).)¿¿Such an order may be made only after notice and hearing, and for
"good¿cause shown."¿ (Code Civ. Proc., §§ 2032.310(c),
2032.320(a).)¿¿¿¿
The motion must state
the time, place, identity and specialty of the examiner, and the "manner,
conditions, scope and nature of the examination."¿(Code Civ. Proc., §
2032.310(b).)¿¿“An order granting a physical or mental examination shall
specify the person or persons who may perform the examination, as well as the
time, place, manner, diagnostic tests and procedures, conditions, scope, and
nature of the examination.” (Code Civ. Proc., § 2032.320(d).)¿¿“The court is to
describe¿in detail¿who will conduct the examination, where and when it
will be conducted, the conditions, scope and nature of the examination, and the
diagnostic tests and procedures to be employed. The way to describe these
‘diagnostic tests and procedures’—fully¿and¿in detail—is to list
them by name.” (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249,
260.)¿
The moving party¿must
support their motion with a meet and confer declaration.¿¿(Code Civ. Proc., §
2032.310(b).)¿ A meet and confer declaration must state facts "showing a
reasonable and good faith attempt at an informal resolution of each issue presented
by the motion."¿ (Code Civ. Proc., § 2016.040.)¿¿¿¿ ¿¿
The examination will be
limited to whatever condition is "in controversy" in the action.¿
(Code Civ. Proc., § 2032.020(a).)¿ This means that the specific injury or
subject of the litigation must be directly invoked by the examination.¿ (See¿Roberts
v. Superior Court¿(1973) 9 Cal.3d 330, 337.)¿¿By alleging a causal link
between the emotional distress and the defendant's conduct, a plaintiff
"implicitly claims it was not caused by a preexisting mental condition,
thereby raising the question of alternative sources for the distress."¿ (Vinson
v. Superior Court¿(1987) 43 Cal.3d 833, 840.)¿¿However,¿a mental
examination is only appropriate where the plaintiff alleges continuing
emotional distress. (Doyle v. Sup. Ct. (Caldwell)¿(1996) 50 Cal.App.4th¿1878,
1886-1887.)¿¿"While a plaintiff may place his mental state in controversy
by a general allegation of severe emotional distress, the opposing party may
not require him to undergo psychiatric testing solely on the basis of
speculation that something of interest may surface."¿ (Vinson,¿supra,
43 Cal.3d at 840.)¿¿¿¿
B.
Discussion
As noted above, pursuant
to Code of Civil Procedure, section 2032.310, a court order is required¿to
obtain a party’s mental examination. (Code Civ. Proc. § 2032.310(a).)¿ As such,
the crux of the issue presented by the parties is a procedural one. Plaintiff
argues that Moving Defendants may not compel an IME that has not been pre-authorized
by this Court. However, in Moving Defendants’ reply brief, they note that this
motion is to obtain such a court order. The Court agrees, while acknowledging
Plaintiff’s argument that Moving Defendants may not move to compel the
Independent Psychological Examination before securing either a stipulation or a
court order.
As
indicated below, the Court does not find that the discussions involving the
previous demand served on Plaintiff between the parties is sufficient to be a
meet and confer prior to filing a Motion to Obtain Leave of Court.
Meet
and Confer
Here, Moving Defendants note that
their defense counsel met and confer with Plaintiff’s counsel. The Declaration
of defense counsel, Mark E. Lowary (“Lowary Decl.”), notes that his office
served a new demand for a mental examination of Plaintiff on November 15, 2023
(Lowary Decl., ¶ 6.) Lowary further
notes that his paralegal sent a follow up email on November 20, 2023, to ensure
they received the prior email and to ensure Plaintiff was available on the date
for the evaluation. (Lowary Decl., ¶ 7.) However, defense counsel notes that in
response, on November 20, 2023, counsel for Plaintiff stated Plaintiff was
non-verbal and asked what defense counsel expected to accomplish. (Lowary
Decl., ¶ 8.) In response, defense counsel notes that he outlined defendant’s
concerns and offering to negotiate a way to avoid the examination of his
client. (Lowary Decl., ¶ 9.) However, Defense counsel notes that he Plaintiff’s
counsel did not respond to advise whether Plaintiff would appear for the
evaluation as noticed for December 20, 2023, and subsequently, did not appear
for that evaluation. (Lowary Decl., ¶¶ 10-11.)
Based on Moving Defendant’s own
counsel’s declaration, this Court does not find that the parties have sufficiently
met and conferred in good faith. The discussions, instead, involved the
procedurally defective demand for the Independent Psychological Examination,
and do not illustrate how the parties attempted to meet and confer prior to the
filing of a Motion for Leave of Court to seek an Order compelling the
Independent Psychological Examination of Plaintiff.
While the Court finds that Moving
Defendants have failed to meet the procedural requirements set forth in Code of
Civil Procedure section 2032.310(b), rather than requiring defendants to re-file
the motion, the Court instead will (a) continue the hearing, (b) facilitate a
discussion of several issues bearing on a more satisfactory meet and confer process,
and (c) discuss the timing of a status report after a post-hearing meet and
confer by the parties. Thus, the Court will
order the parties to meet and confer, and to file a joint or separate status
report(s) after doing so to indicate what the parties have done to resolve any
portion of the issues presented in the moving papers, and whether Plaintiff
will be willing to stipulate to move forward with the examination on specified
conditions, etc. After the parties file the status report(s), this Court
will reach the merits of such a Motion for Leave of Court seeking an Order
Compelling Plaintiff’s Attendance at the Independent Psychological Examination.
For
oral argument at the March 19, 2024 hearing, the Court will engage counsel in a
discussion as to the following:
1.
What
is Jane Doe’s capacity to communicate? Plaintiff’s
opposition to this motion asserts she is “essentially non-verbal,” but the
attached deposition transcript shows some limited capacity for verbal
communication. For example, can she
communicate better in writing than by response to verbal questions? Can she follow instructions for non-verbal
testing that a mental status examination might explore, etc.?
2.
Is
there a protocol for mental status examinations for autistic patients? Does the defense expert Dr. Katz have a
written protocol he intends to use for this case?
3.
Does
Plaintiff intend to call her own mental health care expert at trial who has met
with and/or interviewed or tested Plaintiff?
4.
Can
the parties stipulate that Dr. Katz will not be cross-examined as to his
failure to meet the plaintiff, and to stipulate that no other evidence or argument
will be presented at trial that Dr. Katz never even met the Plaintiff as a
condition of the defense forgoing a defense IME?
5.
What
is the Dr. Katz’ expected scope of a mental status examination? Would it be limited to a neuro-psychiatric
interview? Would it include specific
standardized tests? What is the estimated
duration of the mental status exam?
6.
Does
Jane Doe require a trusted person in the room with her during other examinations,
e.g., a general physical exam, vision or hearing exam, routine gynecological
exams? How do those health care
providers communicate with her?
7.
Have
the parties discussed recording of the mental status exam? Does Dr. Katz audio record his exams of similar
plaintiffs?