Judge: Salvatore Sirna, Case: 21STCV02402, Date: 2023-04-10 Tentative Ruling

Case Number: 21STCV02402    Hearing Date: April 10, 2023    Dept: G

Defendant McKinley Children’s Center, Inc.’s Motion to Compel the Mental Examination of Plaintiff D.C. by Defendant

Respondent: Plaintiff D.C.

TENTATIVE RULING 

Defendant McKinley Children’s Center, Inc.’s Motion to Compel the Mental Examination of Plaintiff D.C. by Defendant is GRANTED.

BACKGROUND

This is a personal injury action. Plaintiff D.C. is a minor student who attended Canyon View School in San Dimas from 2015 to 2019. During Plaintiff’s time as a student, Plaintiff was allegedly bullied, tormented, and subjected to verbal, physical, and sexual assault by fellow students on school premises and while being transported to and from school. As a result, Plaintiff allegedly suffered significant physical and psychological trauma.

On January 20, 2021, Plaintiff, by and through guardian ad litem Olivia C., filed a complaint against West Covina Unified School District (WCUSD); Canyon View School; McKinley Children’s Center, Inc. (McKinley); East San Gabriel Special Education Local Planning Area (ESGSELPA); John Mann (Mann); Jeannie Ortiz (Ortiz); Jennifer Miller (Miller); Jorge Ramirez (Ramirez); Yolanda Cork-Anthony (Cork-Anthony); Diana Marie Casato (Casato); and Does 1-50, alleging the following causes of action: (1) negligence, (2) violation of the Ralph Act, (3) violation of the Bane Act, and (4) violation of the Unruh Civil Rights Act.

On July 12, 2021, Plaintiff dismissed Casato, Cork-Anthony, and ESGSELPA from the present action. On July 22, Plaintiff dismissed WCUSD. On December 20, Plaintiff dismissed Canyon View School.

On April 12, 2022, Plaintiff and McKinley stipulated to a protective order. On December 30, Plaintiff and McKinley stipulated to a mental and psychological examination of Plaintiff.

On February 10, 2023, McKinley filed a motion for summary adjudication. On March 7, McKinley filed the present motion to compel.

A hearing on the present motion is set for April 10, 2023. A hearing on a motion for summary adjudication is set for April 27. An OSC re: Dismissal is set for January 17, 2024, with a final status conference on September 17 and jury trial on October 1.

ANALYSIS

McKinley moves to compel Plaintiff’s mental and psychological examination. Based on the following analysis, the court grants the motion to compel the examination.

Legal Standard

"Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action.” (Code Civ. Proc., § 2032.020, subd. (a).) “If any party desires to obtain discovery . . . by a mental examination, the party shall obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).) “A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310, subd. (b).) “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, subd. (a).)

Discussion

Prior to filing the present motion, McKinley’s counsel met and conferred with Plaintiff’s counsel over the telephone and through email correspondence. (Lopez Decl., ¶ 8-11.) McKinley’s motion also provides the time, place, manner, conditions, scope, and nature of the examination as well as the identity and qualifications of the examiner. (Motion, p. 6:11-26, Ex. H.) Thus, the court finds McKinley’s motion is code compliant.

Next, the court considers whether there is good cause to compel Plaintiff’s mental examination. Even if a plaintiff’s mental state is in controversy, the moving party must demonstrate that “the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vincent v. Superior Court (1987) 43 Cal.3d 833, 840.) Here, thecourt finds there is no dispute that Plaintiff’s mental state is in controversy as Plaintiff alleges Plaintiff suffered psychological trauma and severe emotional distress and will incur future expenses in relation to those injuries. (Complaint, ¶ 42, 55, 61, 66-67, 77.) McKinley also notes that Plaintiff’s discovery responses state Plaintiff continues to suffer severe emotional distress and psychological injuries, including Post-Traumatic Stress Disorder, anxiety, and stress. (Lopez Decl., ¶ 3, Ex. A.) Thus, the court finds a mental and psychological examination of Plaintiff is reasonably calculated to lead to the discovery of admissible evidence as to Plaintiff’s alleged injuries.

In opposition, Plaintiff argues McKinley already attempted an initial mental examination pursuant to a stipulation between the parties. According to the stipulation, the parties originally agreed that Plaintiff’s parent could be present during the entire examination and allowed to make an audio recording of the examination. (12/30/2022 Stipulation, ¶ 6; Lopez Decl., ¶ 4; Ramey Decl., ¶ 7.) Subsequently, Plaintiff’s counsel served an objection and invoked Plaintiff’s right to have an “attorney or representative attend and observe the mental examination and record it by audiotape.” (Ramey Decl., ¶ 8.)

On January 5, 2023, when the examination was set to begin, Plaintiff and Plaintiff’s parent arrived and were accompanied by a nurse practitioner assigned to observe and take notes. (Thomas Decl., ¶ 6.) McKinley’s examiner told the nurse practitioner or observer that observation was not allowed during psychological testing and the observer objected to the examiner administering cognitive assessments. (Thomas Decl., ¶ 6.) After Plaintiff’s counsel informed the examiner that that the observer had to be present during the entire examination, the examiner ended the exam. (Thomas Decl., ¶ 7-9.)

However, as Plaintiff admits, counsel or observers are not required to be present during mental examinations. (Edwards v. Superior Court (1976) 16 Cal.3d 905, 909-912.) In fact, the court in Edwards suggested that the addition of counsel or others to the examination could affect the ability of the examiner to establish a rapport with the examinee and prevent free, open, and objective communication essential to an examination. (Id., at p. 911-912.) The present case demonstrates these concerns are valid as Plaintiff’s nurse observer and parent’s interjections both prevented the examination from occurring. In determining what is appropriate, the court finds the guidance in Edwards especially persuasive:

“Our conclusions are fortified by the element of fairness inhering in the procedural posture of the case. Plaintiff's own psychiatrist has had months, if not years, of unlimited access to plaintiff for psychoanalysis and treatment. This professional relationship has been, as it should be, unfettered. Fundamental fairness requires that a similar unrestricted professional exposure for a brief period be allowed the other side. This will assist the trier in obtaining a balanced and even-handed professional evaluation of the relationship of trauma to plaintiff's mental condition.” (Id., at p. 914.) 

In light of these considerations, the court finds the presence of Plaintiff’s counsel or an observer is not required and should not be allowed. While Plaintiff has a right to make an audio recording of the examination pursuant to Code of Civil Procedure section 2032.530, this does not entitle Plaintiff to have an observer present.  Further, the court finds there are a myriad of ways in which Plaintiff’s mother or Plaintiff’s counsel could record the examination without being present in the room with Plaintiff.

With regard to the presence of Plaintiff’s mother, McKinley’s examiner claims the mother cannot be present during the entire examination. (Thomas Decl., ¶ 12.) However, in the previous stipulation, parties agreed that Plaintiff’s mother could be present during the entire examination and record the audio. Thus, while the court will grant McKinley’s motion to compel an examination, the court will also allow Plaintiff’s mother to be present during the entire examination as agreed by the parties originally to, provided Plaintiff’s mother does not disrupt or interfere in any manner with the examination.

Lastly, McKinley requests sanctions pursuant to Code of Civil Procedure 2032.410, which states “the court may, on motion of the party, impose a monetary sanction” for failure to submit to a required physical or mental examination. Because sanctions are not mandatory and there was a genuine dispute over whether Plaintiff could be accompanied by a nurse observer, the court declines to award sanctions.

CONCLUSION

Based on the foregoing, McKinley’s motion to compel mental and psychological examination is GRANTED.