Judge Thomas D. Long, Case Number: 22STCV18195, Date: 2024-10-08 Tentative Ruling

On June 2, 2022, Plaintiff Jose Mendez filed this action against Defendant California L&M Investments, Inc.

On September 11, 2024, Defendant filed a motion to compel the medical examination of Plaintiff.

A party must obtain leave of court when seeking to obtain discovery by a physical examination by a mental examination. (Code of Civ. Proc., § 2032.310, subd. (a).) A motion for an examination shall 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, subd. (b).) The Court shall grant the motion only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a).)

Plaintiff’s Complaint alleges emotional distress arising from discrimination, wrongful termination, and retaliation. (Complaint ¶ 75; id. at Prayer ¶ 1.) Plaintiff’s discovery responses identify his injuries, including “anxiety/panic attacks – affects whole body,” “inability to concentrate –affects whole body,” “depression – affects whole body,” “suicidal ideation – affects whole body,” “loss of interest in personal interaction with others, self-isolation – affects whole body,” “insomnia – affects whole body,” and “profound tiredness – affects whole body.” (Schwartz Decl., Ex. 1 [Form Rog No. 212.2]) Plaintiff’s anxiety/panic attacks occur weekly and last several hours; his inability to concentrate is consistent, daily, and lasts several hours; his inability to carry out daily functions is consistent, daily, and lasts several hours; his depression is constant; his suicidal ideation occurs monthly for several hours; and his self-isolation and profound tiredness is constant. (Schwartz Decl., Ex. 1 [Form Rog No. 212.3].) Plaintiff also experienced physical injuries arising from the emotional distress. (See Schwartz Decl., Ex. 1.)

Plaintiff has refused to stipulate to a mental examination. (Schwartz Decl. ¶ 3.) Plaintiff has also failed to stipulate to both sides foregoing psychiatric experts at trial and Plaintiff testifying to only the garden variety distress associated with a termination. (Schwartz Decl. ¶ 3.)

Plaintiff argues that the proposed examination date is prior to the motion’s hearing date, so the motion should be denied because Plaintiff is “not capable of traveling backwards in time.” (Opposition at p. 1.) This discrepancy is easily remedied and is not grounds to deny the motion.

Plaintiff confirms that his emotional distress is at issue for his damages: he “reserves the right to present expert testimony regarding how his termination from employment, as well as his mistreatment as an employee for 17 years – how all of that has affected him from a psychological standpoint.” (Opposition at p. 3.) Plaintiff contends that “the symptoms of mental distress he claims to have suffered are akin to those that an ordinary person would likely experience in similar circumstances, and it constitutes matters that are within the everyday experience of the average juror.” (Id. at p. 4.) However, he also contends that whether he suffered “garden-variety” emotional distress or severe emotional distress “is a question not easily resolved.” (Id. at p. 4.)

Plaintiff has not received any treatment from health care providers because he is unable to afford healthcare. (Schwartz Decl., Ex. 1 [Form Rog No. 212.4].) Accordingly, the information sought cannot be alternatively obtained through treatment records or other means. Plaintiff acknowledges that “[t]here may not be medical records to substantiate all of [his] symptoms, but that does not mean there is no evidence available to corroborate Plaintiff’s claims.” (Opposition at p. 2.) Plaintiff does not identify any other such evidence other than his own descriptions.

If the Court orders a mental examination, Plaintiff asks that the examination occurs “with appropriate safeguards and clarification as to what is truly intended by this unknown test that Dr Saint Martin apparently intends to administer.” (Opposition at p. 4.) Plaintiff contends that the proposed “Structured Interview of Malingered Symptoms” is unclear and “may be incredibly intrusive and lacking in medical soundness.” (Id. at p. 3.) This Interview is one of four listed psychological tests that Dr. Manuel Saint Martin may use, but not every test on the list will be utilized. (Schwartz Decl., Ex. 3.) Plaintiff acknowledges that “[t]here is a fairly well known test called the Structured Inventory of Malingered Symptomology,” and “[m]aybe it is a typographical error” on the list of Dr. Manuel Saint Martin’s tests. (Opposition at p. 3.) Plaintiff’s “bottom line is there need to be some parameters on the level of intrusion that will be permitted during the examinations Defendant’s proposes to administer.” (Ibid.) There are parameters already in place for the examination. Plaintiff has not shown why this single-word discrepancy should prevent an examination.

Defendant’s motion complies with Code of Civil Procedure section 2032.310, and the Court finds there is good cause to order the mental examination.

Because the proposed order identifies an examination date that has already passed, at the hearing, the parties should be prepared to discuss scheduling a new date.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Even if all parties submit, counsel is still ordered to appear at the hearing so they can choose an examination date.

Hon. Thomas D. Long

Judge of the Superior Court