Judge: Stephen P. Pfahler, Case: 21STCV06947, Date: 2023-02-23 Tentative Ruling

Case Number: 21STCV06947    Hearing Date: February 23, 2023    Dept: F49

Dept. F-49

Date: 2-23-23 (advanced via 1-26-23 ex parte order)

Case # 21STCV06947

Trial Date: 4-3-23

IME

MOVING PARTY: Defendant, Los Angeles Unified School District

RESPONDING PARTY: Plaintiffs, Jane Roe, et al.

RELIEF REQUESTED:

Motion for Independent Medical Examinations

SUMMARY OF ACTION:

Plaintiffs Jane GQ Roe, Jane GR Roe, and Jane GS Roe allege Los Angeles Unified School District, San Fernando High School wrestling coach, Terrell Gillard, committed varying sexual acts with the plaintiffs, when they were between the ages of 15 to 17 years old both on and off campus premises. Gillard is represented as incarcerated, and Los Angeles Unified School District appears as the only defendant in the action.

On February 23, 2021, and June 7, 2021, Plaintiffs filed their complaint for child sexual assault, negligence, and negligent failure to educate, train, and warn. The action was transferred from Department 32 to Department 49 on March 25, 2021.

RECOMMENDED RULING: Granted.

Defendant Los Angeles Unified School District moves to compel an independent medical examination of plaintiffs Jane GQ Roe, Jane GR Roe, and Jane GS Roe. The court treats all three (3) motions in a single order. The examination seeks information related to the mental and emotional distress claims within the action. Defendants seek a psychological examination to be conducted by psychiatrist James High, M.D.

Plaintiffs in “partial” opposition states that the parties resolved the majority of the conditions requested, with one outstanding issue remaining—inquiry into the plaintiffs’ sexual history beyond any conduct with Terrell Gillard. Plaintiffs contend the motion lacks support for any inquiry into the subject matter.

Defendant notes the validity of the requested examinations, including inquiry into the parties’ sexual history beyond their time with Terrell Gillard.

Absent a stipulation, a court order is required for a mental examination. (Code Civ. Proc., § 2032.320, subd. (a).) The examination will be limited to whatever condition is “in controversy” in the action. The standard for good cause requires the moving party to 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.) The examination may not include any diagnostic test or procedure that is painful, protracted, or intrusive and the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).) “This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.250, subd. (a).) Moving party demonstrates a sufficient meet and confer effort. [Declarations of Julie Mullane.]

Past injuries outside the subject controversy are not subject to examination. (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887; Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341.) The court finds the current emotional distress injury claims are present and relevant to the current damages claim, even if the origin of certain conditions potentially predates the incident. The proposed examination into Plaintiff’s psychological condition is therefore proper and was indisputably put it into issue by Plaintiffs.

Code of Civil Procedure section 2032.220, subdivision (a), bars a protracted examination. The parties agree that each of individual examination shall be completed within the same scheduled day for the party, barring inordinate delays caused by excessive slowness or breaks by the appearing plaintiff. A representative may observe the examination and seek to interject for purposes of seeking a protective order, but no such situation is before to the court at this time. (See Code Civ. Proc., § 2032.020, subd. (e).) Plaintiffs otherwise represent the remainder of the agreed upon conditions as the turnover of the recording and raw test tests results.

On the sexual history argument, the court cites to the standard for discovery.

“In any civil action alleging conduct that constitutes sexual harassment, sexual assault, or sexual battery, any party seeking discovery concerning the plaintiff's sexual conduct with individuals other than the alleged perpetrator shall establish specific facts showing that there is good cause for that discovery, and that the matter sought to be discovered is relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence. This showing shall be made by a noticed motion, accompanied by a meet and confer declaration under Section 2016.040, and shall not be made or considered by the court at an ex parte hearing.” (Code Civ. Proc., § 2017.220, subd. (a).)

The motion itself lacks specific address of the necessity for examination into sexual histories beyond the perpetrator. (See Evid. Code, § 783; Code Civ. Proc., § 2017.220, subd. (a).) Defendant in reply contends such an inquiry is justified due to GS Roe testifying in deposition to certain “intimacy difficulties” with her spouse. Defendant cites to the Evidence Code for determination of inquiries into sexual histories.

“In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of the plaintiff's sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium.” (Evid. Code, § 1106, subd. (a).)

“If the plaintiff introduces evidence, including testimony of a witness, or the plaintiff as a witness gives testimony, and the evidence or testimony relates to the plaintiff's sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the plaintiff or given by the plaintiff.” (Evid. Code, § 1106, subd. (d).)

The court in its discretion can decline to consider new arguments made in the reply in that it deprives Plaintiffs of their opportunity to respond. The parties have presumably met and conferred on this prior to the filing of the motion. Prior consideration provides some basis for consideration of the “new” arguments raised in the reply, unless Defendant denies any such pre-filing discussions, which would then constitutes a basis for complete rejection of any consideration.

The court finds the arguments seeking the inquiry for purposes of impeachment falls outside the course and scope of the actual medical examination, and is more properly addressed at the time of the trial. Furthermore, Defendant only addresses one of the three plaintiffs, and otherwise lacks evidentiary address for the necessity of inquiry for all parties.

Even considering the criteria, the operative complaint also lacks any loss of consortium cause of action. Such claims are not brought by Plaintiffs, but by their spouses, if applicable. The court accepts the possibility of Plaintiffs seeking to introduce emotional distress damages as a result of “intimacy difficulties” with their spouses/partners via their own medical expert, but the inability to counter inquire is not resolved via the late, and incomplete arguments of the instant motion. The court therefore limits any sexual history inquiries exclusively to Terrell Gillard.

The motion is therefore granted. The examination is ordered to proceed as reflected by both the terms of the agreement between the parties and the bar into the sexual histories of Plaintiffs beyond their claims regarding Terrell Gillard. Plaintiffs request the drafting of an order reflecting the terms. The court therefore orders Defendant to submit a draft order to the court.

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2032.240, subd. (c), 2032.250, subd. (b).) Neither party makes a request for sanctions.

Moving defendant to provide notice.