Judge: Steven A. Ellis, Case: 22TCV30042, Date: 2024-02-20 Tentative Ruling
Case Number: 22TCV30042 Hearing Date: February 20, 2024 Dept: 29
Motion for Leave to Conduct Mental Examinations of Plaintiffs filed by
Defendant City of Pasadena.
Tentative
The motion is GRANTED in part and DENIED in part.
Background
This case arises from an incident
on August 3, 2021, in which a police dog allegedly attacked a young child in
front of his family during a demonstration performed at a community event. Plaintiffs Sebastian I. Forbes, through his
guardian ad litem; Lincoln Forbest, through his guardian ad litem; Joshua Chad
Forbes; and Andrea Forbes (collectively, “Plaintiffs’) filed the Complaint in
this action on September 14, 2022, followed by a First Amended Complaint and
Second Amended Complaint (“SAC”).
In the SAC, Plaintiffs assert
claims against City of South Pasadena (“City”); National Association of Town
Watch, Inc. (“Town Watch”); and Does 1 through 100. Plaintiffs include in their SAC four causes
of action for strict liability (against all defendants); negligent hiring,
training, supervision, and retention (against City and Does 1 through 50);
general negligence (against Town Watch and Does 51 through 100); and negligent
infliction of emotional distress (against Town Watch and Does 51 through 100).
On June 7, 2023, the Court, at the
request of Plaintiffs, dismissed without prejudice the cause of action for negligent
hiring, training, supervision, and retention.
On June 12, 2023, City filed its
Answer to the SAC.
On December 1, 2023, City filed this motion for an
order for mental examinations of all four Plaintiffs. Plaintiffs filed their opposition on February 5, and City filed its reply on February 9.
Legal Standard
Code of Civil Procedure section 2032.310 provides
that when a defendant seeks a mental examination of a plaintff, the defendant
must 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 a motion for a mental
examination of a plaintiff “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.) 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.)¿¿
Meet and Confer
A defendant seeking leave to conduct a mental
examination of a plaintiff 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.)¿¿¿¿
That requirement is satisfied here. (Valencia Decl., ¶ 4; Exhibit A.)
Discussion
City moves for leave to conduct a mental examination of
all four plaintiffs. Specifically, City
requests an order for the minor children plaintiffs (Sebastian and Lincoln) to
be examined by Dr. Christopher Thompson and the adult plaintiffs (Joshua and
Andrea) to be examined by Dr. Marc Cohen.
(The Court is referring to the Plaintiffs by their first names because
all four are in the same family and share the same last name; no disrespect or
excessive familiarity is intended.) Dr,
Thompson and Dr. Cohen both have extensive credentials and are both board-certified
psychiatrists.
Given the nature of the claims asserted here, including
being subject to an attack by a police dog (for Plaintiff Sebastian) and
witnessing the attack on their child/sibling (for the other Plaintiffs), Plaintiffs
do not contest that there is good cause for mental examinations of all four
Plaintiffs. Rather, Plaintiffs raise
four arguments regarding the examinations in their Opposition: (1) that City
has not sufficiently identified the tests that will be administered; (2) that
the examinations should not be videotaped; (3) that the examinations should be
limited in time; and (4) that the parents should be allowed to attend the
examinations of the minor children.
Identification of the Tests
Dr. Thompson identifies, by name, two tests that “may” be
administered to each child plaintiff.
(Thompson Decl., ¶ 10.) He states
that the tests “cannot be determined in advance of the independent psychiatric
evaluation because whether or not each test is deemed necessary depends on the
clinical judgment from the psychiatric examination.” (Id. ¶ 6.)
Dr. Cohen identifies, by name, nine tests that “may” be
administered to each adult plaintiff.
(Cohen Decl., ¶ 19.)
The Court finds that this identification of the tests is
sufficient. The Court understands that,
as the examination proceeds, the examiner may decide that some of the
identified tests are not necessary. But
neither examiner may add to the examination any tests not specifically identified
by name in the examiner’s declaration submitted with the moving papers.
Video recording of the Examinations
The California Legislature has expressly provided that “The
examiner and examinee shall have the right to record a mental examination by audio
technology.” (Code of Civ. Proc. § 2032.530,
subd. (a).) Nothing in the Civil
Discovery Act allows video recording.
Although City (and its experts) make a series of
arguments regarding why video recording is useful (and, given changes in
technology, far less intrusive than it was in the past), those arguments are
properly directed to the Legislature, not the courts.
The Court orders that the examinations may be recorded by
audio technology but not video.
Time Limitations
For the adult plaintiffs, Dr. Cohen states that a
complete examination “should have sufficient time spanning at least one full eight-hour
day.” (Cohen Decl., ¶ 6.) “Shortening the duration of the psychiatric
examination” may result “in an inaccurate and unreliable psychiatric diagnosis.” (Id., ¶ 5.)
For the children, Dr. Thompson states that independent examinations
“such as the one contemplated here, usually require close to a full day. This is approximately six hours in length,
excluding breaks.” (Thompson Decl., ¶
7.)
Plaintiffs ask the Court to limit the adults’
examinations to six hours each and the children’s examinations to five hours
each. (Opp. at 6.) City
asks for no “artificial” limitations and suggests that the Court allow the
experts to decide how long the examinations should last. (City Reply, at 7-8.) Neither side cites any controlling authority
on point.
On this record, the Court finds that there has been no
showing made for an order limiting the length of the examination of the adult
plaintiffs. For the minor children
plaintiffs, the Court will order that the length of the examination may not
exceed six hours, excluding breaks, as Dr. Thompson testifies is generally a
sufficient amount of time.
Attendance of Parents
Sebastian is eight years old (DOB 11/19/15), and Lincoln
is twelve years old (DOB 10/10/11).
(SAC, ¶¶ 8-9.)
In their moving papers, City states that after the
interviews of the children are complete, Dr. Thompson will interview the parents
as well as the children “[i]f a parent or caregiver is available and willing to
participate.” (Mot., at 15:18.)
In his declaration, however, Dr. Thompson states that the
interviewing and testing should be conducted “without the presence of
assistants or parents.” (Thompson Decl.,
¶ 13.) “Relevant professional guidelines
are clear that the presence of a third party can substantially negatively influence
the evaluation process. Therefore,
parents and/or caregivers should not be present during the interview or testing.” (Ibid.)
Plaintiffs contend in their opposition that one or both
parents should be present for the entirety of the children’s examinations. (Opp. at 2-4.)
The case law cited by both sides is largely unhelpful. Most of the cases cited by City address the
presence of counsel, which is generally not permitted except in unusual
circumstances, but there is an obvious and clear difference between counsel and
parents of a minor-child-examinee. (See,
e.g., Edwards v. Super. Ct. (1976) 16 Cal.3d 905; Toyota Motor Sales,
U.S.A. v. Super. Ct. (2010) 189 Cal.App.4th 1391, 1396-1398.) In the case
cited by Plaintiffs, the parties apparently agreed to the presence of a parent
during the examination, and of course cases do not stand for propositions that
the parties did not contest and the court therefore did not decide. (See Golfland Entertainment Ctrs. v.
Super. Ct. (2003) 108 Cal.App.4th 739, 749.)
The Court credits the testimony of Dr. Thompson that the
presence of a parent or caregiver may negatively influence the
examination. Given the young age of
Sebastian, however, the Court will allow one parent or caregiver to accompany
him for the first one hour of the examination.
During that time, the parent or caregiver may observe silently; may not interfere
with or disrupt the examination (whether through words or actions); and may not
participate unless specifically requested by the examiner. For the remainder of the examination (after
the first hour), Sebastian will not be accompanied by a parent or caregiver
unless specifically requested by the examiner.
Parents or caregivers may spend time with Sebastian during all breaks..
For the examination of Lincoln, he may not be accompanied
by a parent or caregiver unless specifically requested by the examiner. Parents or caregivers may spend time with Lincoln
during all breaks.
Conclusion
The motion of City is GRANTED in part and DENIED in part.
The Court GRANTS City’s request for leave to conduct a
mental examination of all four Plaintiffs.
The four examinations may be recorded by audio technology.
The Court DENIES City’s request for permission to record
the four examinations by video technology.
The Court ORDERS Plaintiff Joshua Forbes to
appear and be interviewed and tested by Marc Cohen, M.D., on February 27, 2024,
at 9:00 a.m. at 333 S. Beverly Drive, Suite 200, Beverly Hills, CA 90212.
The Court ORDERS Plaintiff Andrea Forbes to
appear and be interviewed and tested by Marc Cohen, M.D., on February 28, 2024,
at 9:00 a.m. at 333 S. Beverly Drive, Suite 200, Beverly Hills, CA 90212.
The Court ORDERS Plaintiff Sebastian Forbes to appear and
be interviewed and tested Christopher R. Thompson, M.D., on February 29, 2024,
at 9:00 a.m. at 10850 Wilshire Blvd., Suite 850, Los Angeles, CA 90024.
The Court ORDERS Plaintiff Lincoln Forbes to appear and
be interviewed and tested by Christopher R. Thompson, M.D., on March 4, 2024,
at 1:30 p.m. at 10850 Wilshire Blvd., Suite 850, Los Angeles, CA 90024.
During the examination of Plaintiffs Joshua and
Andrea Forbes, Dr. Cohen may administer the following tests (only): (1) Minnesota
Multiphasic Personality Inventory (MMPI-2; MMPI-2-RF; MMPI-3); (2) Millon Clinical Multiaxial Inventory
(MCMI-IV); (3) Personality Assessment Inventory(PAI); (4) Structured Interview
of Reported Symptoms (SIRS-2); (5) Montreal Cognitive Assessment (MOCA); (6) 15-Item
Test (FIT); (7) Morel Emotional Numbing Test (MENT); (8) Trauma Symptom
Inventory (TSI-2); and (9) Test of Memory Malingering (TOMM).
During the examination of Plaintiff Sebastian Forbes, Dr. Thompson
may administer the following tests (only): (1) Trauma Symptom Checklist for
Children (TSCC); and (2) Trauma Symptom Checklist for Young Children (TSCYC),
to be completed by a parent or caregiver, if a parent or caregiver is available
and willing to participate.
During the examination of Plaintiff Lincoln Forbes, Dr. Thompson
may administer the following tests (only): (1) Trauma Symptom Checklist for
Children (TSCC); and (2) Millon Pre-Adolescent Clinical Inventory (M-PACI).
The Court DENIES the request of the adult plaintiffs for
a time limitation for the examinations.
The Court GRANTS the request of the minor children
plaintiffs for a time limitation for the examinations and ORDERS that the
length of the examination of each of Sebastian and Lincoln may not exceed six
hours, excluding breaks.
The Court further ORDERS that for the examination of
Sebastian, the Court will allow one parent or caregiver to accompany him for
the first one hour of the examination.
During that time, the parent or caregiver may observe silently; may not interfere
with or disrupt the examination (whether through words or actions); and may not
participate unless specifically requested by the examiner. For the remainder of the examination (after
the first hour), Sebastian may not be accompanied by a parent or caregiver
unless specifically requested by the examiner.
Parents or caregivers may spend time with Sebastian during all breaks.
The Court further ORDERS that for the examination of
Lincoln, he may not be accompanied by a parent or caregiver unless specifically
requested by the examiner. Parents or
caregivers may spend time with Lincoln during all breaks.
Moving Party is to give notice.