Judge: Serena R. Murillo, Case: 20STCV03020, Date: 2022-09-09 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.



Case Number: 20STCV03020    Hearing Date: September 9, 2022    Dept: 29

Jesus Fernandez v. Royce Lamar Cobb, et al.

TENTATIVE 

 

Defendants Royce Lamar Cobb and Nichole C. Cobb’s Motion to Compel Mental Examination of Plaintiff is GRANTED but limited to the conditions described within this order.

 

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.)¿¿¿ 

 

Discussion 

Defendant seeks to compel Plaintiff’s mental examination, arguing that Plaintiff put his emotional and mental state at issue by alleging that he sustained psychological injuries, including traumatic brain injury and deficits in balance and memory. Defendant argues that Plaintiff has indicated he is agreeable to submitting to a mental examination under certain overreaching conditions, such as requiring Dr. Bilder to produce the raw data from the examination directly to Plaintiff’s attorneys. Defendant argues that Dr. Bilder has an ethical obligation not to produce mental testing raw data to anyone not qualified to receive, understand and interpret the data. Defendants’ counsel has attempted to meet and confer to discuss a possible stipulation regarding the mental independent medical examination. (Faccone Decl., Exh. C.) However, Plaintiff’s counsel has contacted Defense counsel and has indicated that the issues regarding conducting the mental examination should be determined by the Court.

The Independent Neurological-Psychological Examination is to be performed by Robert M. Bilder, Ph.D. “It involves history taking and observation of the Plaintiff for the purpose of gathering information in specific areas. The information gathering is continued by administering standard, validated series of psychological tests. This test battery generally consists of instruments proven to give reliable and valid information about a person’s mental state and difficulties. These are chosen from a group of tests including: [over 100 listed tests].” (Id., Exh. A.)

Plaintiff does not object to a mental examination, but argues that Defendant’s expert should produce the entirety of the raw data and audio recording to Plaintiff’s expert and well as his counsel’s office. Plaintiff also seeks the names of the specific tests Dr. Bilder intends to use for this examination, and argues the entire examination should be audio recorded, and Plaintiff will not sign the consent form. Plaintiff’s counsel is willing to stipulate to a protective order to protect against any of Dr. Bilder's fears about the questions being disseminated to anyone outside of this litigation.

First, as to producing the raw data to Plaintiff’s counsel, under Code of Civil Procedure section 2032.610(a)(1), Plaintiff may make a written demand that Defendant produce “[a] copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.”  The Court finds that Plaintiff’s opposition constitutes a written request for these documents and finds that the underlying raw testing data should also be produced as part of the “results of all tests made.”  Defendant raises concerns regarding ethical issues about certain documents being used outside proper psychological contexts.  The Court orders the parties to meet and confer to draft a stipulated protective order confining the scope of disclosure and use of the raw test data so that it may be properly used by Plaintiff to consult with his own experts and to conduct cross-examination of Defendant’s experts.    

 

The Court denies the request for disclosure of any audiotape made by Dr. Bilder.  Under Code of Civil Procedure section 2032.530, “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.”  Thus, Plaintiff has the right to record the mental examination himself, and there is no authority which would bar him from leaving the examination with the audiotape, but Plaintiff does not have the right to secure a copy of any audiotape made by Dr. Bilder.  To the extent that Plaintiff needs assistance in recording the session, the parties should meet and confer to accomplish that so long as no one other than Plaintiff and the examiner is present during the course of the actual examination.   

 

Next, as to the specific tests to be used by Dr. Bilder, in Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 261, the court explained that “in the instances covered by section 2032.320, there is a heightened risk of undue mental or physical invasion.” As a result, “requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant's need for a meaningful opportunity to test the plaintiff's claims of physical or mental injury. (Id.) "The correct method to describe the tests and procedures is fully and in detail and to list them by name and with specificity. (Id. at 260.)  It is not proper to list 25 and say they might do 12 or more.  Instead, the Plaintiff must be informed about the specific tests so he ‘may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary.’ The Defendant's vagueness does not permit that." (Id. at 267.) 

The Court finds that Defendant’s proposed examination of Plaintiff is not specific in that it does not list the tests and procedures to be used. The notice of the examination lists over 100 tests, and says the examination may include those tests, just as Carpenter explained, it is not proper to list a number of tests and say they might do some or more. Plaintiff must be informed about the specific tests. Therefore, the Court orders that Defendant list the proposed tests to be used by Dr. Bilder.

Lastly, Defendant has cited to no authority or law in support of the argument that Plaintiff should execute a consent to the examination. Thus, that request is denied.

Conclusion 

 

Based on the foregoing, Defendant’s Motion to Compel Mental Examination of Plaintiff is GRANTED but limited to the conditions described above.

 

Moving party is ordered to give notice.