Judge: Steven A. Ellis, Case: 22STCV26733, Date: 2024-12-17 Tentative Ruling

Case Number: 22STCV26733    Hearing Date: December 17, 2024    Dept: 29

Gellar v. Sunrise Dressingrooms, Inc.
22STCV26733
Defendants’ Motion for Leave to Obtain Mental Examination of Plaintiff

Tentative

The motion is denied.

Background

Two consolidated cases arise out of a vehicle accident on October 2, 2020 on the southbound 5 Freeway near the intersection with the 2 Freeway in Los Angeles, California.

In the first-filed and lead case (Case No. 22STCV26733, the “Gellar Action”), on August 17, 2022, Beth Gellar (“Gellar”) filed a complaint against Robert George McLellan, Jr. (“McLellan”), Sunrise Dressingrooms, Inc. (“Sunrise”), and Does 1 through 50 for motor vehicle negligence and general negligence. On September 29, 2022, Robert George McLellan, Jr. and Sunrise Dressingrooms, Inc. filed their answer.

In the second-filed case (Case No. 22STCV32107, the “Tanaka Action”), on September 30, 2022, Christine Tanaka (“Plaintiff”) filed a complaint asserting a cause of action for motor vehicle negligence against Defendants McLellan, Sunrise, Amazon Content Services, LLC (“Amazon”),  and Does 1 to 25. In December 2023, Plaintiff amended the complaint to name Picrow, Inc. d/b/a Pictures in a Row (“Picrow”) as Doe 1.

Before the Court and set for hearing on December 17, 2024, is a motion filed by Defendants McLellan, Sunrise, Amazon, and Picrow (collectively, “Defendants”) on November 15 for leave to obtain a mental examination of Plaintiff Tanaka.

Plaintiff filed an opposition on November 21, and Defendants filed a reply on December 10.

Legal Standard

“Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition … of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2032.020, subd. (a).)

In a personal injury action, the defendant may demand one physical examination of plaintiff as of right, without advance leave of the court.  (Code Civ. Proc., § 2032.220.) 

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.” (Code Civ. Proc., § 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 such a motion “only for good cause shown.” (Id., § 2032.320, subd. (a).) 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.) 

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.”¿ (Code Civ. Proc., § 2016.040.)¿¿¿¿ 

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc., § 2032.020, subd. (a).) 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 840.) By alleging a causal link between the emotional distress and the defendant's conduct, however, a plaintiff “implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.” (Ibid.) 

“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.)¿¿ 

Discussion

Plaintiff claims to have suffered a wide range of injuries from the accident, including mental, cognitive, and emotional injuries.  (Lewis Decl., ¶ 2.)  Accordingly, Defendants seek leave to conduct a mental (neuropsychological) examination of Plaintiff.  In their motion, Defendants identify the proposed examiner (Dr. Manuel Saint Martin); the examiner’s specialty (neuropsychology); the date, time, and location of the testing; and the scope and nature of the examination (the taking of a history and the administration of 14 enumerated tests).

As a threshold matter, Plaintiff argues that Defendants have not sufficiently identified the tests to be administered.  (Opp. at pp. 15-16.)  The Court has reviewed the motion papers and finds that Defendants have met the applicable procedural requirements in their moving papers.

Turning to the merits, Plaintiff makes two arguments about the conditions of the testing.

First, Plaintiff argues that she should be permitted to audio record the examination.  (Opp. at p. 15.)  That is required under the plain text of Code of Civil Procedure section 2032.530.  Subdivision (a) of that statute states, clearly and unequivocally, “The examiner and examinee shall have the right to record a mental examination by audio technology.”  The Court will follow the unambiguous direction of the Legislature.

Second, Plaintiff argues that she (or her attorney) should be given access to the raw test data.  Defendants object, citing (among other things) the proprietary nature of the tests and the ethical standards of mental health professionals that prohibit the dissemination of raw test data to anyone except for other mental health professionals.

Plaintiff’s request for her attorney to have access to the raw data from the testing requires a more extended analysis.  Beginning with the statute, 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 Plaintiff’s 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 p. 828.)  On writ review, the defendants made arguments similar to the ones that Ocampo makes 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 pp. 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 p. 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 p. 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 concludes that Defendants and their examiner should be required to disclose the raw data and testing materials directly to Plaintiff’s 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 Plaintiff access to the material she needs to cross-examine Defendant’s 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 finds that it is appropriate to establish the following protective order for the raw testing data 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.

In this case, Dr. Saint Martin states in his declaration that he will not comply with these requirements.  (Saint Martin Decl., ¶ 27.)

Accordingly, the motion for leave is denied.  The motion must identify the examiner.  (Code Civ. Proc., § 2032.310, subd. (b).) Defendants identify Dr. Saint Martin as the examiner.  But since Dr. Saint Martin has made it clear that he will not comply with Code of Civil Procedure section 2032.530 or this Court’s ruling with regard to the raw test data, the Court cannot grant leave to Defendants for Dr. Saint Martin to conduct the proposed examination.

To be clear, the Court is not criticizing Dr. Saint Martin.  The Court understands that he is taking a position that he believes is necessary to satisfy his professional and ethical obligations.  But if Dr. Saint Martin will not follow the clear command of the Legislature or the ruling of this Court, the Court cannot grant leave for him to be the one to conduct a mental examination of Plaintiff

Conclusion 

The Court DENIES Defendants’ motion for leave to conduct a mental (neuropsychiatric) examination of Plaintiff.

Moving party is ordered to give notice.