Judge Theresa M. Traber, Case 20STCV36059 2023-03-08 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV36059, Date: 2023-03-08 Tentative Ruling

Case Number: 20STCV36059 Hearing Date: March 8, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 8, 2023 TRIAL DATE: October 24, 2023

CASE: Anita Young v. The Kroger Co. et al.

CASE NO.: 20STCV36059

MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATION

MOVING PARTY: Defendants The Kroger C. and Ralph’s Grocery Co.

RESPONDING PARTY(S): Plaintiff Anita Young

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment law action for sexual harassment and retaliation that was filed on September 21, 2020. Plaintiff alleges that she was sexually harassed by her supervisor, and that her employers refused to investigate or take action, permitting the supervisor to retaliate against her for her complaints.

Defendants move to compel a defense mental examination of Plaintiff.

TENTATIVE RULING:

Defendants’ motion to compel the defense mental examination of Plaintiff is GRANTED in part. The Court will permit Dr. Judy Ho to examine Plaintiff remotely via videoconferencing on April 7, 2023, beginning at 10:00 a.m, or at another time mutually agreeable to the parties. The testing is to be conducted over no more than seven hours and is to be limited to a clinical interview and three of the identified tests, excluding the Substance Abuse Subtle Screening Inventory. The examination will not probe any of Plaintiff’s sexual conduct with individuals other than alleged perpetrator Keith Henry.

Plaintiff is entitled to make an audio recording of the entire examination. Plaintiff is also entitled to depose Dr. Ho, so long as Defendants seek to offer her opinions at trial, as well as any expert whose opinions are grounded in any way on the late-sought defense mental examination the Court authorizes in this order.

This ruling is conditioned on Defendants filing and serving on all parties within 10 days of this order a declaration or other evidence demonstrating that Dr. Ho is a licensed physician or licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders, pursuant to Code of Civil Procedure section 2032.020(c)(1).

DISCUSSION:

Defendants move to compel an independent mental examination of Plaintiff.

“In Controversy” Requirement

Any party may obtain discovery by means of a mental examination of a party in an action in which the mental condition of that party is “in controversy in the action.” (Code Civ. Proc. § 2032.020(a).) Leave of court is required. (Code Civ. Proc. § 2032.310(a).)

Here, Plaintiff’s mental condition is “in controversy.” Plaintiff asserts a cause of action for intentional infliction of emotional distress, alleging that she suffered and continues to suffer emotional distress because of Defendants’ conduct. (Complaint ¶¶ 257-258.) Further, Plaintiff testified in her deposition that she is emotionally “a wreck” because of Defendants’ conduct, and that she suffers from depression and insomnia for which she is receiving treatment. (Plaintiff’s Deposition pp. 179:22-180:9.) As such, Plaintiff’s continuing mental condition is “in controversy” in this action, and Defendants may conduct a mental examination of Plaintiff, if the other statutory requirements are met. (Code Civ. Proc. § 2032.020(a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

Procedural Requirements

A motion for a mental examination must “specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination.” (Code Civ. Proc. § 2032.310(b).) The motion must also be accompanied by a meet and confer declaration. (Ibid.) Notice of the motion must be served on the “person to be examined and on all parties who have appeared in the action” (Code Civ. Proc. § 2032.310(c).)

Here, Defendants did not properly serve notice of the motion specifying 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.” (Code Civ. Proc. § 2032.020(a).) Notice was served on Plaintiff and specifies that licensed psychologist Judy Ho, Ph.D, will examine Plaintiff on either January 30, 2023 or February 6, 2023, or as otherwise ordered by the Court. However, the Notice itself does not indicate the place of the examination or the time at which the examination would take place, although the notice does state that the examination would be seven hours, “excluding breaks” (Notice of Motion.) Plaintiff does not object to the motion on this procedural ground, and the information is provided elsewhere in the moving papers. Defendants’ Separate Statement provides that the examination will be conducted beginning at 9:00am on the specified date and will be conducted remotely via telehealth platform, such as HIPAA-compliant Zoom. (Separate Statement p.2.) Breaks for lunch, personal comfort, or necessity will be permitted as needed. (Id. p. 3.)

The notice does not indicate Dr. Ho’s specialty. However, the statutory phrase “specialty, if any” means that it is not necessary to specify a specialty if the person performing the exam does not have one. (Cf. McClain v. Sav-On Drugs (2017) 9 Cal.App.5th 684, 698 [interpreting the phrase “all sums, if any, due defendant retailers” to mean that some retailers might not have sold any items for which a refund was due].)

The notice identifies the tests to be performed and the “manner, conditions, scope, and nature of the examination.” The notice states that the examination will seek to evaluate the nature, causes, and extent of Plaintiff’s claimed mental and emotional distress, and may inquire into the treatment sought by Plaintiff for her distress and the costs thereof. (Notice of Motion.) The notice states that the examination will consist of:

[A] detailed interview, mental status examination, and appropriate, generally accepted standardized psychological testing and screening cognitive assessments, limited to: MMPI-3 (MMPI-3), Million Clinical Multiaxial Inventory-IV (MCMI-IV), Personality Assessment Inventory (PAI), Mini-Mental State Examination -2 (MMSE-2), PTSD Checklist with Life Events Checklist (PCL-5 with LEC-5) Structured Clinical Interview for DSM-5 (SCID-5), Structured Interview of Reported Symptoms, Second Edition (SIRS-2), Structured Inventory of Malingered Symptomology (SIMS), Substance Abuse Subtle Screening Inventory Fourth Edition (SASSI-4), Beck Anxiety Inventory (BAI), Beck-Depression Inventory-II (BDI-II), and Beck Hopelessness Inventory (BHI). Plaintiff will not be subjected to any physical examination.

(Notice of Motion).

Finally, a Court-ordered mental examination may be performed “only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders” (Code Civ. Proc. § 2032.020(c)(1).) Defendants provide no basis for the Court to determine whether Dr. Ho satisfies these statutory requirements. The Court therefore cannot grant the motion as requested based on the current record.

Good Cause

A motion for a mental examination is granted “only for good cause shown.” (Code Civ. Proc. § 2032.320(a).) 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 requirement of good cause “serves as a barrier to excessive and unwarranted intrusions.” (Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 428 [superseded by statute in unrelated part].) If the moving party shows good cause for the examination, the Court’s order must 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.” (CCP § 2032.320(d).)

Here, Defendants have shown good cause for Dr. Ho to conduct an examination of Plaintiff’s mental condition in connection with her claims of ongoing mental and emotional distress. Defendants have demonstrated a need to discover the extent and cause of Plaintiff’s alleged ongoing emotional distress. Defendants have also shown that this inquiry is relevant to the subject matter of the action, given that Plaintiff seeks damages for emotional distress that she claims Defendants caused. Thus, Defendants have shown good cause for testing related to the Plaintiff’s mental and emotional state as relevant to her claims of ongoing mental and emotional distress.

Defendants have not shown good cause, however, for a full day of testing involving at least 11 different tests, many of which would be duplicative. This proposal is unreasonable for a standard FEHA case. Plaintiff is not alleging that she suffered any physical trauma that would affect her cognitive functioning or any other basis on which that topic would be relevant to this case. Further, Defendants have failed to show good cause for subjecting Plaintiff to the Substance Abuse Subtle Screening Inventory.

Accordingly, the Court finds that there is good cause for Dr. Ho to examine Plaintiff’s mental condition given her claims of ongoing mental and emotional distress, but that the testing must be more limited than Defendant’s proposal, including no more than three relevant testing instruments and excluding the Substance Abuse Subtle Screening Inventory.

Plaintiff’s Objections

Plaintiff raises numerous objections to the motion and the proposed conditions of the examination, including objections as to the timeliness of this motion, the scope of the examination, and the procedural requirements and limitations of the examination.

1. Timeliness of Motion

Plaintiff first objects to this motion on the grounds that expert discovery has closed. However, the parties have since stipulated that discovery would remain open as to certain outstanding discovery disputes, including this motion, while remaining otherwise closed. (February 22, 2023 Order.) The Court therefore finds that this objection is moot.

As to Plaintiff’s request that the Court permit Plaintiff to depose Defendants’ experts, it is true that the stipulated order regarding what discovery remained open did not specifically permit Plaintiff to take the deposition of Dr. Ho or any other expert who might rely on her examination. But that order was entered at a time when there was no order permitting a defense mental examination. As a matter of fairness, the Court will permit Plaintiff to depose Dr. Ho, so long as Defendants seek to offer her opinions at trial, as well as any expert whose opinions are grounded in any way on the late-sought defense mental examination the Court authorizes in this order.

2. Scope of Examination

Plaintiff objects to the scope of the examination as overbroad and an invasion of Plaintiff’s privacy. Plaintiff seeks to limit the scope of the examination only to emotional distress arising from the harassment alleged against Defendant Henry and only to a period from 2010 to the present.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.)

If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

Plaintiff makes no effort to specifically address the factors set forth in Williams, instead relying on the now-superseded standard of direct relevance and compelling state interest set forth in Britt. Plaintiff has therefore failed to justify these privacy objections under current precedent. Nevertheless, the Court shares Plaintiff’s concern that the proposed examination is overbroad, and will therefore limit the scope of the examination, as stated above.

With respect to Plaintiff’s objection that the examination should not inquire as to Plaintiff’s sexual history with any individuals other than Defendant Henry, Defendants state in their reply brief that they do not intend to conduct any inquiry into this area. Thus, Plaintiff’s objection appears to be moot, but the Court makes Defendant’s expressed limitation an explicit restriction on the mental examination.

3. Procedural Objections

Plaintiff objects to the motion on the basis that Defendants purportedly request that all test results, notes, and reports remain strictly confidential except as to Defendants’ counsel and examiners, and propose that Plaintiff’s audio recording of the examination be restricted. In reply, Defendants state that Plaintiff has misconstrued the proposed examination. The parties do not dispute that Plaintiff is entitled to any reports generated by an examination upon written demand of those reports pursuant to Code of Civil Procedure section 2032.610. Further, the proposed examination expressly provides that any data or materials produced will be provided to Plaintiff’s experts upon request, and will be provided to Plaintiff’s counsel if requested, subject to a protective order. (See, e.g., Separate Statement Nos. 11, 17.) As such, there does not appear to be an actual dispute between the parties in this respect.

Nor is there an actual dispute between the parties concerning Plaintiff’s right to record the examination. As the parties agree, Plaintiff is entitled to record a mental examination by audio technology. (Code Civ. Proc. § 2032.530(a).) In reply, Defendants state that the proposed examination permits Plaintiff to record the clinical interview. Defendants further state that the remaining portions of the examination are not oral but are instead written or computerized and therefore physically impossible to record by audio. Defendants state that Plaintiff “may audio record her interview without limitation.”

Plaintiff also objects to the propriety of the proposed protective order. However, as no motion for a protective order is currently pending, the Court declines to rule on this issue.

CONCLUSION:

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 8, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.