Judge: Steven A. Ellis, Case: 23STCV01231, Date: 2025-03-10 Tentative Ruling

Case Number: 23STCV01231    Hearing Date: March 10, 2025    Dept: 29

Nonn v. City of Los Angeles
23STCV01231
Defendant’s Motion for Conditions on Mental (Neuropsychological) Examination

Tentative

The motion is denied.

Background

On January 19, 2023, Plaintiff Anthony Nonn (“Plaintiff”) filed a complaint against City of Los Angeles (“Defendant”), County of Los Angeles, California Department of Transportation, State of California, and Does 1 through 50, asserting a cause of action for dangerous condition of public property. The complaint alleges that on May 13, 2022, at approximately 1:15 p.m., Plaintiff was driving eastbound on Burbank Boulevard west of the northbound 405 on-ramp, when he suddenly lost control of his vehicle due to an area of roadway that failed, crumbled, or broke, causing Plaintiff to collide with another vehicle.

On February 24, 2023, The People of the State of California, acting by and through the Department of Transportation (“Caltrans”), filed an answer.

On May 18, 2023, Defendant filed an answer, as well as a cross-complaint against Roes 1 through 10.

On May 1, 2024, the Court, on the stipulation of Plaintiff and Caltrans, dismissed Caltrans without prejudice.

Before the Court and set for hearing on March 10, 2025, is a motion filed by Defendant on February 6, 2025.  The motion is captioned as a motion to compel a mental (neuropsychological) examination of Plaintiff.

Plaintiff filed an opposition on February 25, and Defendant filed a reply on March 3, 2025.

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

The Court begins with two threshold issues.

First, Defendant captions its motion as a motion to compel.  That is improper.  A party has no right to compel, on demand, a mental examination of another party.  The motion is properly brought as a motion for leave.  (Code Civ. Proc., § 2032.310, subd. (a).)  Notwithstanding this technical defect, however, the Court will proceed to the merits, as the substance of the motion plainly seeks an order for a mental examination.

Second, Defendant does not merely seek leave for a mental examination of Plaintiff.  The motion seeks leave to conduct the mental examination with four specific conditions.  It is these conditions that are the subject of the dispute between the parties.

Turning now to the merits, Plaintiff claims to have suffered a wide range of injuries from the accident, including a traumatic brain injury.  (Taylor Decl., Exh. A.)  Accordingly, Defendant seeks to compel a mental (neuropsychological) examination of Plaintiff.  In its motion, Defendant identifies the proposed examiner (Dr. Philip K. Stenquist); the examiner’s specialty (neuropsychology); the date, time, and location of the testing; and the scope and nature of the examination.

Plaintiff does not contest that there is good cause for a mental examination.  The dispute relates to the conditions of the examination.

Defendant’s motion seeks four conditions for the mental examination: (1) that the examiner, Dr. Stenquist, will disclose raw testing data from the examination to Plaintiff’s retained psychology or neuropsychology expert only, and not to his counsel; (2) that Plaintiff may audio record the interview portion of the examination only, but not the testing portion; (3) that Dr. Stenquist will audio record the testing portion of the examination and transmit the recording to Plaintiff’s retained psychology or neuropsychology expert upon request; and (4) that no video recording shall take place during any part of the examination.

The Court addresses these four proposed conditions in a slightly different order.

1. Audio Recording by Plaintiff

Defendant requests that Plaintiff be permitted to record only the interview portion of the examination, not the testing portion.

The Legislature has spoken clearly and unequivocally with regard to the issue of audio recording of a mental examination.  Code of Civil Procedure section 2032.530 states, “The examiner and examinee shall have the right to record a mental examination by audio technology.”  (Code Civ. Proc., § 2032.530, subd. (a).)  Plaintiff therefore has an express statutory right to record the examination.  Where, as here, the proposed examination will involve both an interview and a testing component, Plaintiff has the statutory right to record the entire examination – both the interview and the testing portions – and not merely part of the examination. 

The Court understands that Defendant and many mental health professionals have concerns about the audio recording of the mental examinations.  Those concerns can be directed to the Legislature.  Where, as here, the Legislature has spoken clearly and unequivocally to the issue, this Court will not engage in an alternative balancing of the competing concerns at issue or otherwise disregard the clear command of the statute.  (See Golfland Entertainment Ctrs. v. Super. Ct. (2003) 108 Cal.App.4th 739, 750-752.)

This condition requested by Defendant is denied.

2. Audio Recording by Examiner  

Defendant requests that the examiner record the testing portion of the examination and transmit it to Plaintiff’s expert (only) upon request.

The examiner also has the right to record the entire mental examination.  (Code Civ. Proc., § 2032.530, subd. (a).)  The statute imposes no obligation on the examiner to share the audio recording with Plaintiff, Plaintiff’s counsel, Plaintiff’s expert, or anyone else.  Plaintiff, of course, has the right to make his own recording (above), and has the right to retain that recording and share it as he sees fit.  (See Randy’s Trucking v. Super. Ct. (2023) 91 Cal.App.5th 818, 837.)

If the parties choose to agree to a single audio recording only (which they are not required to do), and the parties choose to agree that this single audio recording will be made by the examiner only (which they are not required to do), then it is up to the parties to reach an agreement with regard to the use or dissemination of the parties.  If the parties so agree, the Court will not impose a condition that the single recording of the examination can be shared only with Plaintiff’s expert – as Plaintiff has a statutory right to record the examination himself, keep the recording, and share it with his attorney.

This condition requested by Defendant is denied. 

3. Video Recording of Examination

Defendant requests that there be no video recording of any portion of the examination.

No statute or case law allows either the examiner or the examinee to record a mental examination by video technology.

This condition requested by Defendant is granted.

4. Disclosure of Raw Testing Data

Defendant requests that the raw testing data be shared only with Plaintiff’s retained expert, and not with Plaintiff’s counsel.  Defendant supports this request with (among other things) significant evidence of 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, including a collective statement signed by 149 California-licensed neuropsychologists.  (See Taylor Decl., Exh. F.)

The Court begins with the text of the applicable statute.  Code of Civil Procedure section 2032.610 provides that 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).)  The parties dispute whether the raw testing data falls within the meaning of the statutory phrase “the results of all tests made.”  Defendant contends that it does not, arguing (among other things) 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. 

The Court of Appeal recently considered this very issue in Randy’s Trucking, supra.  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.  (91 Cal.App.5th at p. 828.)  On writ review, the defendants made arguments similar to the ones that Defendant makes here, including (among others): (1) that disclosure would violate the ethical and professional obligations of the testing expert; and (2) 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 that that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, "the attorney must themselves possess more than a second-hand understanding of the information being scrutinized."  (Ibid.)

After carefully considering the evidence and arguments presented by both sides, the Court concludes that Defendant and its 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 he 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.

This condition requested by Defendant is denied.

In sum, Defendant has stated that Dr. Stenquist will not conduct the examination unless all four of Defendant’s conditions are granted.  The Court is denying the request for three of the four conditions.  As Dr. Stenquist will not proceed with the examination without the requested conditions, and the Court will not order the examination with Defendant’s requested conditions, Defendant’s motion for leave to conduct a mental examination of Plaintiff is denied. 

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

Conclusion 

The Court DENIES Defendant’s motion for leave to conduct a mental (neuropsychological) examination of Plaintiff.

Moving party is ordered to give notice.