Judge: Steven A. Ellis, Case: 21STCV09023, Date: 2023-12-18 Tentative Ruling
Case Number: 21STCV09023 Hearing Date: December 18, 2023 Dept: 29
Tentative
The Court GRANTS Defendants’ motions for
leave to conduct mental examinations of Plaintiffs Hannah Reyes and Cherese
Reyes, subject to the conditions set forth in this ruling.
The
Court GRANTS Defendants’ motions to compel the depositions of Plaintiffs Hannah
Reyes and Cherese Reyes, subject to the conditions set forth in this
ruling.
The
Court DENIES Defendants’ request for monetary sanctions.
Background
Plaintiffs Victor Reyes, Jr., Cherese Reyes, Hannah Reyes
and Lorraine Reyes (“Plaintiffs”) filed the complaint in this action on March
8, 2021, against Talia Veronica Kocar, Civan Kocar, and
Does 1 through 50, asserting claims for motor vehicle negligence and general
negligence arising out of a vehicle collision that allegedly occurred on May
15, 2019, on the 405 Freeway near Bel Air Crest Road in Los Angeles. Defendants Talia Kocar and Civan Kocar (“Defendants”)
filed an answer to the complaint on February 2, 2022.
Currently before the Court are four discovery motions.
In the first two motions, both filed on October 23, 2023,
Defendants seek leave to conduct mental
examinations of Plaintiffs Hannah Reyes (“Hannah”) and Cherese Reyes (“Cherese”).
(The Court will use first names here to
distinguish among the Plaintiffs, who share the same last name; no disrespect
or excessive familiarity is intended.). Plaintiffs
filed an opposition on November 3.
Defendants filed replies on November 9.
Plaintiffs filed a surreply on November 15 and a supporting declaration the
next day, on November 16. from These
matters were initially set for hearing on November 17 and were continued by the
Court, on its own motion, to December 18.
In the
other two motions, both filed on November 15, 2023, Defendants move to compel
the depositions of Hannah and Cherese.
Plaintiffs filed oppositions on November 30, and Defendants filed
replies (and evidentiary objections) on December 6. These matters were initially set for hearing
on December 13 and were continued by the Court, on its own motion, to December
18.
Defendants filed two Motions to
Compel, one for the deposition of Plaintiff Cherese Reyes, and one for the
deposition of Hannah Reyes, on November 15, 2023. Plaintiffs filed their
oppositions to both motions on November 30, 2023. Defendants filed replies on
December 6, 2023.
Defendants on both motions to compel
depositions request $3,960.00 in monetary sanctions against Plaintiffs and
their counsel, for a total of $7,920.00.
Legal Standard
Defense Mental Examination
Code of Civil Procedure section 2032.220 provides,
in pertinent part:
(a) In any case in which a plaintiff is seeking recovery for personal
injuries, any defendant may demand one physical examination of the plaintiff,
if both of the following conditions are satisfied:
(1) The examination does not include any diagnostic test or procedure that is
painful, protracted, or intrusive.
(2) The examination is conducted at a location within 75 miles of the
residence of the examinee.
(b) A defendant may make a demand under this article without leave of court
….
(c)
A demand 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 physician who will perform the examination.
(d) A physical examination demanded under subdivision (a) shall be scheduled
for a date that is at least 30 days after service of the demand ….
(Code Civ. Proc., § 2033.220.)
If a defendant seeks a further physical examination
of plaintiff, or a mental examination, the defendant must first file a motion
and “obtain leave of court.” (Id., § 2032.310, subd. (a).) Such a
motion must “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.” (Id., subd. (b).)
The court may grant a motion for a mental
examination of a plaintiff “only for good cause shown.” (Id., §
2032.320, subd. (a).) The examination will be limited to whatever condition is
“in controversy” in the action.¿ (Ibid.) A showing of good cause
generally requires “that the party 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. Super. Ct. (1987) 43 Cal.3d 833, 840.)
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.” (Ibid.)
A mental examination is appropriate only if the
plaintiff alleges continuing emotional distress. (Doyle v. Super. Ct.
¿(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 p. 840.)
“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, subd.
(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. Super. Ct.¿(2006)
141 Cal.App.4th 249, 260.)¿¿
The moving party¿must support the motion with a meet
and confer declaration. (Code Civ. Proc., § 2032.310, subd. (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.”¿ (Id., § 2016.040.)¿¿¿¿
A court shall not (except under “exceptional
circumstances”) order a mental examination if the plaintiff stipulates (1)
“that no claim is being made for mental and emotional distress over and above
that usually associated with the physical injuries claimed” and (2) “that no
expert testimony regarding this usual mental and emotional distress will be
presented at trial in support of the claim for damages.” (Code Civ. Proc., §
2032.320, subds. (b) & (c).)
Deposition
“Any party may obtain discovery … by
taking in California the oral deposition of any person, including any party to
the action.” (Code Civ. Proc., §
2025.010.) Code of Civil Procedure
sections 2025.210 through 2025.280 provide the requirements for (among other
things) what must be included in a deposition notice, when and where
depositions may be taken, and how and when the notice must be served.
“The service of a deposition notice …
is effective to require any deponent who is a party to the action or an
officer, director, managing agent, or employee of a party to attend and to
testify, as well as to produce any document, electronically stored information,
or tangible thing for inspection and copying.”
(Id., § 2025.280, subd. (a).)
Section 2025.410, subdivision (a),
requires any party to serve a written objection at least three days before the
deposition if the party contends that a deposition notice does not comply with
the provisions of sections 2025.210 through 2025.280.
“If, after
service of a deposition notice, a party to the action or an officer, director,
managing agent, or employee of a party, or a person designated by an
organization that is a party under Section 2025.230, without having served a
valid objection under Section 2025.410, fails to appear for examination, or to
proceed with it, or to produce for inspection any document, electronically
stored information, or tangible thing described in the deposition notice, the
party giving the notice may move for an order compelling the deponent’s
attendance and testimony, and the production for inspection of any document,
electronically stored information, or tangible thing described in the
deposition notice.” (Code Civ. Proc., §
2025.450, subd. (a).) Any such motion
to compel must show good cause for the production of documents and, when a
deponent has failed to appear, the motion must be accompanied “by a declaration
stating that the petitioner has contacted the deponent to inquire about the
nonappearance.” (Id., § 2025.450,
subd. (b).) “Implicit in the requirement that counsel contact
the deponent to inquire about the nonappearance is a requirement that counsel
listen to the reasons offered and make a good faith attempt to resolve the
issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection
Serv. (2001) 86 Cal.App.4th 1109, 1124. See
also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be
given to accommodating schedules in setting depositions).)
When a motion to compel is granted, “the
court shall impose a monetary sanction under Chapter 7 (commencing with Section
2023.010) in favor of the party who noticed the deposition and against the
deponent or the party with whom the deponent is affiliated, unless the court
finds that the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction unjust.”
(Id., § 2025.450, subd. (g)(1).)
In Chapter 7 of the Civil Discovery Act, section
2023.010, subdivision (d), defines “[m]isuses of the discovery process” to
include “[f]ailing to respond to or to submit to an authorized method of
discovery.” Where a party or attorney
has engaged in misuse of the discovery process, the court may impose a monetary
sanction in the amount of “the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct.” (Id., § 2023.030, subd. (a).)
Discussion
Mental Examinations
As a threshold matter, the Court will exercise
its discretion to consider the sur-reply filed by Plaintiffs. Although advance permission was not sought or
obtained, the Court recognizes that the material included in the sur-reply was not
available to Plaintiffs when they filed their oppositions. If Defendants would like the opportunity to submit
a written response to the sur-reply, the Court will consider a request by
Defendants to continue the hearing so that Defendants may submit such a
response.
On the merits, Plaintiffs concede that there
is good cause for the Defendants’ requested mental examination of Cherese and
Hannah. Cherese and Hannah have put
their psychological conditions in issue.
Plaintiffs have presented evidence (from Dr.
Hoffman for Hannah and from Dr. Newman for Cherese) that submitting to a court-ordered
neuropsychological evaluation “may result in adverse neurobehavioral consequences”
for Cherese and Hannah. The Court
understands the concern that participation in the litigation process may have
adverse effects on Cherese and Hannah, but the Court does not understand what
Plaintiffs are proposing. Plaintiffs
have no obligation to pursue this litigation, or to pursue any particularly
claim in this litigation, but if they choose to pursue litigation and seek
recovery for emotional or psychological injuries, they must participate in discovery
and allow Defendants to conduct a reasonable investigation of their claims
using the tools authorized by the California Legislature, including a defense
mental examination. Plaintiffs may not seek
to recover for injuries and at the same time preclude Defendants from
conducting legitimate discovery into the nature and extent of those injuries.
Plaintiffs have asked for a continuance or
delay so that Cherese and Hannah may obtain additional treatment. They have not offered any reasonable
alternative to mental examinations that are supported by a showing of good cause. Accordingly, absent some alternative suggestion
from Plaintiffs, the Court GRANTS Defendants’ request for leave to conduct mental
examinations of Cherese and Hannah.
Next, the Court turns to the conditions of the
examination.
First, Plaintiffs request that they be allowed to record
the examination by audio technology.
That request is granted. (Code
Civ. Proc., § 2032.530, subd. (a).)
Second, Plaintiffs request for an order, in advance,
regarding the fee that they will be required to pay if they cancel the
examination. That request is premature and
is denied without prejudice. As a
general matter, Plaintiffs may be subject to payment of any fee that is
actually incurred and paid by Defendants for a late cancellation, but at this
point this is a hypothetical or speculative issue, and the Court will not rule
on hypothetical or speculative matters.
Third, Plaintiffs request some limitation on the
length of the examination. As indicated
above, Defendants have shown that they have the right to conduct this
examination. The Court also recognizes,
however, that Plaintiffs have the right to seek compensation for their injuries
without experiencing an undue burden from discovery or a protracted
examination. In balancing these
competing considerations, and after considering all of the evidence in the
record, the Court rules that the mental examination for each of Cherese and
Hannah will be limited to a total of four hours per Plaintiff, divided into two
sessions of approximately two hours each.
The examiner will give each Plaintiff adequate opportunity to request
reasonable breaks within the examination sessions, and time spent during those
breaks will not count toward the total or per session examination time.
Fourth, Plaintiffs seek access to the raw data from
the testing. A plaintiff submitting to a mental examination has the
right to demand that the defendant deliver to the plaintiff 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
examination.” (Code Civ. Proc., § 2032.610, subd. (a)(1).) Defendants oppose the request for raw testing
data, arguing that these materials must remain confidential and that requiring disclosure
of these materials directly to Plaintiffs’ counsel would violate the code of
professional conduct that applies to mental health professionals. Defendants also argue that the phrase “results
of all tests made” in Code of Civil Procedure 2032.610, subdivision (a)(1),
does not include raw data and test materials.
(See Roe
v. Superior Court (2015)
243 Cal.App.4th 138, 149 [rejecting, in a writ proceeding, a party’s
“undeveloped” argument that the statute required disclosure of testing material
and raw answers].)
The Court of Appeal recently considered
this very issue in Randy’s Trucking v. Superior Court (2023) 91
Cal.App.5th 818. In that case, the
superior court ordered that the raw data be provided to plaintiff’s counsel,
subject to a protective order that prohibited any use or disclosure of the
materials for any purpose other than in connection with the litigation. (Id. at 828.) On writ review, the defendants made arguments
similar to the ones that Defendants make here, including (among others) : (1)
that disclosure is not required by section 2032.610; (2) that disclosure would
violate the ethical and professional obligations of the testing expert; and (3)
that disclosure to attorneys, rather than other health care professionals,
would lead to coaching of future clients that would undermine the value and
effectiveness of the testing materials.
(Id. at 834, 837-38.)
The Court of Appeal rejected those
arguments, holding that the superior court did not abuse its discretion in
compelling the disclosure pursuant to a protective order. (Id. at 842).
As the Court of Appeal explained, a plaintiff has a
right
to take discovery and cross-examine defendants’ expert witnesses, which
includes being able to examine the expert on the matter upon which the expert’s
opinion is based and the reasons for that opinion. (Evid. Code, § 721, subd. (a).) Without raw data and audio recording,
plaintiffs cannot effectively scrutinize the way the data was collected,
determine if there are discrepancies, and cross-examine the neuropsychologist on
the basis and reasons for the neuropsychologist’s opinion.
(Id. at 838.) The appellate court also rejected the
argument that the disclosure should be made only to the plaintiff’s expert,
explaining (among other things) that a party “should not be forced to retain an
expert to gain access to these materials.”
(Ibid.)
After carefully considering the evidence
and arguments presented by both sides, the Court GRANTS Plaintiffs’ request
that the order for the examination include a provision requiring disclosure of
the raw data and testing materials directly to Plaintiffs’ counsel, subject to
a protective order, for two separate and independent reasons.
First, given the overall purposes of the
Civil Discovery Act, the Court interprets the phrase “results of all tests
made” in section 2032.610 broadly, to include raw testing data. That interpretation promotes the well-established
policy in favor of broad and mutual pre-trial disclosure that runs throughout
the Civil Discovery Act and the case law.
Second, even if the disclosure is not
required by section 2032.610, the decision whether to order disclosure of raw
test data falls within the broad discretion of the superior court. (Randy’s Trucking, supra, 91
Cal.App.5th at p. 837; Carpenter, supra, 141 Cal.App.4th at pp. 271-272.) Here, the Court has weighed the competing
interests and finds that the appropriate balance is struck by requiring
disclosure subject to a protective order, just as Superior Court Judge Barmann
did in the Randy’s Trucking case.
This will allow Plaintiffs access to the material they need to
cross-examine the Defendants’ expert and prepare for trial, and it will
minimize the risk of improper or undue distribution of the data to third
parties.
Following the lead of Judge Barmann, the
Court will order the following protective order in this matter:
Plaintiff’s counsel, defense counsel and all experts, consultants
and employees of the respective firms shall maintain the security of all raw
data, test materials and other medically private information obtained during
the examination. However, such raw data, test materials and other medically
private information may be disclosed to plaintiff’s counsel, defense counsel
and all experts, consultants and employees of the respective firms for use in
this case. Such materials and data may also be shown to the trier of fact at
the time of trial, or such other time as may be necessary for the adjudication
of the above-captioned matter. These materials may be used for no other
purpose, may not be disseminated to any other party and the parties shall take
all reasonable steps to maintain the confidentiality of the above-identified
materials.
Counsel may seek to add to or modify these
provisions (by a court order entered following a stipulation or motion), but
the materials must be disclosed to Plaintiffs’ counsel, and, pending further
order of the Court, the protective order set forth above will apply.
With these additional provisions,
Defendants’ request for mental examinations of Cherese and Hannah are GRANTED. The examinations are to take place within 30
days.
Depositions
As a threshold matter, the Court SUSTAINS the objections of
Defendants to the declaration of counsel (Lourdes DeArmas) and OVERRULES the
objections to the declarations of Dr. Newman and Dr. Hoffman.
On the merits, the Court first rejects the
arguments of Plaintiffs that Defendants have brought this motion under the
incorrect code section or that the motion is time barred.
The issue of the depositions of Cherese and Hannah have been the
subject of extended discussions between counsel. Ultimately, an agreement was reached that
Defendants would depose Cherese and Hannah for one hour each on August 7, 2023,
with additional sessions to be scheduled as needed. (Wilbur Decl., ¶ 22.)
On August 7, Cherese and Hannah were deposed for one hour each. Since then, Plaintiffs have refused to
produce Cherese and Hannah for additional sessions of their depositions. (Wilbur Decl., ¶ 28.)
As noted above in more detail in connection
with the defense mental examination, the Court understands the concerns of both
sides. Defendants have a right to conduct
reasonable discovery to prepare for trial.
Plaintiffs have the right to seek compensation for their injuries
without experiencing an undue burden from discovery or a protracted
examination.
In balancing these competing considerations,
and after considering all of the evidence in the record, the Court rules that
the depositions of Cherese and Hannah will be limited to a total of two
additional hours per Plaintiff; this may be, for each Plaintiff, in one session
of two hours or two sessions of approximately one hour each. Each Plaintiff may request reasonable breaks within
the deposition sessions, and time spent during those breaks will not count
toward the total or per session deposition time.
The next session of each deposition will take
place within 30 days. The third and
final session of each deposition will take place within 45 days.
Defendants’ requests for sanctions are DENIED. The Court finds that Plaintiffs and their
counsel have acted with substantial justification.
Conclusion
The Court GRANTS Defendants’ motions for
leave to conduct mental examinations of Plaintiffs Hannah Reyes and Cherese
Reyes, subject to the conditions set forth in this ruling. Defendants are ORDERED to prepare and to
submit to the Court a written order that complies with all statutory requirements
and the conditions of this ruling. The examinations are to take place within
30 days.
The
Court GRANTS Defendants’ motions to compel the depositions of Plaintiffs Hannah
Reyes and Cherese Reyes, subject to the conditions set forth in this
ruling. The next session of each deposition will take
place within 30 days. The third and
final session of each deposition will take place within 45 days.
The
Court DENIES Defendants’ request for monetary sanctions.
The Court ORDERS Defendants
to give notice.