Judge: Theresa M. Traber, Case: 20STCV40080, Date: 2023-03-30 Tentative Ruling

Case Number: 20STCV40080    Hearing Date: March 30, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 30, 2023                                  TRIAL DATE: May 30, 2023

CASE:                         Dr. Melina Abdullah, et al. v. Jacquelyn Lacey, et al.

CASE NO.:                 20STCV40080

(1)   MOTION TO COMPEL COMPLIANCE WITH COURT ORDER

(2)   MOTION TO COMPEL MENTAL EXAMINATION x3

MOVING PARTY:               (1)(2) Defendant Jacquelyn Lacey.

RESPONDING PARTY(S): (1) Plaintiffs Melina Abdullah and Justin Marks; (2) Plaintiffs Melina Abdullah, Dahlia Ferlito, and Justin Marks.

CASE HISTORY: 

·         10/19/20: Complaint filed. 

·         11/05/20: First Amended Complaint filed. 

·         02/05/21: Second Amended Complaint filed. 

·         04/12/21: Third Amended Complaint filed. 

·         01/17/23: Fourth Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: 

Plaintiffs allege that they were peacefully protesting outside of Defendants’ home when Defendants conspired to compel them to leave by having Defendant David Lacey threaten Plaintiffs with a handgun when they rang Defendants’ doorbell. Plaintiffs also allege that Defendants then made false and misleading statements about the incident when it was under investigation. 

            Defendants move to compel compliance from Plaintiffs Marks and Abdullah regarding the Court’s January 19, 2023 minute order. Defendants also move to compel each Plaintiff to submit to a mental examination pursuant to Code of Civil Procedure § 2032.310, et seq.

TENTATIVE RULING:

Defendant’s Motion to Compel Compliance with the Court’s January 19, 2023 Minute Order is GRANTED. Plaintiffs Marks and Abdullah are directed to provide signed HIPAA waivers pursuant to their stipulation to Defendant’s counsel within 30 days of this order.

Defendant’s motion to compel independent mental examinations of Plaintiffs is DENIED. This ruling is conditioned on Defendant’s payment of $120 in filing fees by the date this matter is set to be heard.

DISCUSSION:

Motion to Compel Compliance with Court Orders

            Defendants move to compel Plaintiffs Marks and Abdullah to comply with the Court’s January 19, 2023 order directing Plaintiffs to provide a HIPAA waiver to defense counsel to allow Defendants to secure Plaintiffs’ therapy records from Monica Ellison, MA, MFT.

            A court has the power to “compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” (Code Civ. Proc. §128(a)(4).)

            Defendants contend that, despite the Court’s order to do so, Plaintiffs have not provided the necessary HIPAA waivers to permit Defendants to secure therapy records from Monica Ellison, MA, MFT, a therapist from who Plaintiffs sought therapy. (Declaration of Mira Hashmall ISO Mot. ¶ 13.) In opposition, Plaintiffs concede that the signed waivers have not been provided, but state that the noncompliance was the result of “unforeseen circumstances” which led them to “anticipate withdrawing Monica Ellison as an expert in this matter.” (Declaration of Carl. Douglas ISO Opp. ¶ 2.) Plaintiffs do not elaborate on these unforeseen circumstances, nor do they provide any explanation of why they have “complicated Plaintiffs’ efforts to obtain the relevant records.” (Id.) Plaintiffs request additional time to comply with the Court’s order. (Id.)  Plaintiffs shall receive their additional time in the form of an order directing compliance with the Court’s January 19, 2023 Minute Order within 30 days.

            Accordingly, Defendant’s Motion to Compel Compliance is GRANTED. Plaintiffs Marks and Abdullah are directed to provide signed HIPAA waivers to Defendant’s counsel within 30 days of this order.

Motion to Compel Mental Examination

Defendants move to compel each of the three Plaintiffs to submit to a defense mental examination.

Three Motions in One

            Defendants move to compel each of the three Plaintiffs to submit to a defense mental examination in a single motion. Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing];¿see¿also¿Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011)¿[“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”].) As the allegations and issues in this matter run contiguously for all three Plaintiffs, the Court will address the issues collectively for all Plaintiffs. However, the Court conditions its ruling on the payment of $120 in filing fees for two additional motions to compel mental examinations.

“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, Plaintiffs’ mental conditions are “in controversy” from the face of the operative complaint. The Fourth Amended Complaint alleges a cause of action for intentional infliction of emotional distress. (See 4AC ¶¶ 34-39.) Plaintiffs also more generally seek emotional distress damages for the first cause of action for negligence. (See 4AC ¶ 26.)  Further, Plaintiffs have received treatment for their injuries from a therapist, who has been designated by Plaintiffs as an expert in this case.  As such, Plaintiffs’ continuing mental condition is “in controversy” in this action, and Defendant may conduct a mental examination of Plaintiff, if the other statutory requirements are met. (CCP § 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, Defendant properly served 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 all Plaintiffs and specifies that licensed psychologist Arthur P. Asatoorian, Psy.D, will examine Plaintiffs in person at 450 N. Brand Blvd, Suite 600, Glendale CA 91203 (Notice, at p. 2.) The examination is to take place between 9:00 a.m. and 5:30 p.m. on dates mutually agreeable to the parties, with intervening breaks. (Ibid.) Each Plaintiff will be examined on a different date. (Ibid.) The notice states that there can be circumstances warranting continuation of the examination beyond 5:30 p.m., or onto an additional day. (Ibid.) The notice also lists Dr. Asatoorian’s specialty of clinical psychology. (Ibid.)

Additionally, the notice states that the examination will consist of four to six hours of psychological interview, followed by two to three hours of psychological testing. (Notice at p. 2.) The “primary psychological testing includes the MMSE-2; MMPI-2; MMPI-2-RF; PAI; MCMI-IV; TSI-2; SCL-90-R; BDI-II and BAI,” and Plaintiffs might be subjected to additional testing “if Dr. Asatoorian deems appropriate.” (Ibid.)

This notice is insufficient, given that Defendant has stated that further tests not listed could be performed. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 263 [interpreting the statute to require specific tests to be specified to ensure that “the court has considered any objections to the tests and provides the examiner clear parameters for the examination”].) Further, neither the notice nor the moving papers provide any explanation for the plethora of abbreviations provided in the notice, nor is there any elaboration on what the noticed examinations would entail. As Plaintiffs have objected to the notice on this basis, the Court cannot overlook this defect in the notice. Defendant’s notice is not code-compliant under section 2032.310(b) of the Code of Civil Procedure.

Conclusion

 Accordingly, Defendant’s motion to compel defense mental examinations of Plaintiffs is DENIED.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Compliance with the Court’s January 19, 2023 Minute Order is GRANTED. Plaintiffs Marks and Abdullah are directed to provide signed HIPAA waivers pursuant to their stipulation to Defendant’s counsel within 30 days of this order.

Defendant’s motion to compel mental examinations of Plaintiffs is DENIED. This ruling is conditioned on Defendant’s payment of $120 in filing fees by the date this matter is set to be heard.

Moving party to give notice.

IT IS SO ORDERED.

Dated:   March 30, 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.