Judge: Upinder S. Kalra, Case: 20STCV11386, Date: 2023-05-17 Tentative Ruling

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Case Number: 20STCV11386    Hearing Date: May 17, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   May 17, 2023                                     

CASE NAME:           Danielle Tumbleson v. City of Los Angeles, et al.

CASE NO.:                20STCV11386

MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION

MOVING PARTY: Defendant City of Los Angeles

RESPONDING PARTY(S): Plaintiff Danielle Tumbleson

REQUESTED RELIEF:

1.      An order compelling Plaintiff to undergo an independent medical examination.

TENTATIVE RULING:

1.      Motion to Compel Independent Medical Examination is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On March 20, 2020, Plaintiff Danielle Tumbleson (“Plaintiff”) filed a complaint against Defendants City of Los Angeles, Lieutenant Michel Kozak, Detective Richard Wheeler, Detective Kenneth White, and Detective Mario Santana (“Defendants.”) The complaint alleged three causes of action: (1) Gender Discrimination in Violation of FEHA, (2) Sexual Harassment/Hostile Work Environment in Violation of FEHA, and (3) Retaliation in Violation of FEHA. The complaint alleges that Plaintiff was a Detective and was recruited to be a member of the Operations Valley Bureau Homicide – Fresh Murders Squad “2” in March 2018. Prior to starting, Plaintiff was aware of Defendant Santana’s treatment toward females in the workplace. Additionally, Plaintiff was aware that Santana’s supervisors were aware of his behavior, but failed to take any action. As a result of the harassment and discrimination, Plaintiff requested to transfer. However, Plaintiff’s transfer request to Mission Division was denied twice and was given a false reason for the denial. Plaintiff eventually transferred out of OBVH.

On June 17, 2020, Defendants filed City of Los Angeles, Lieutenant Michel Kozak, Detective Richard Wheeler, Detective Kenneth White filed a Demurrer, which was OVERRULED.

On June 23, 2020, Plaintiff filed a Request for Dismissal as to the Retaliation and Discrimination Causes of Action as to Defendants Wheeler, Kozak and White only.

On September 8, 2020, Defendant Mario Santana filed an Answer.

On September 21, 2020, Plaintiff filed a Request for Dismissal as to the Retaliation and Discrimination Causes of Action as to Defendant Santana

On November 25, 2020, Defendant City of Los Angeles filed an Answer.

On March 18, 2021, Plaintiff filed a Request for Dismissal as to the Entire Action as to Defendants Kozak, Wheeler, White, and Santana.

On February 22, 2023, Defendant City of Los Angeles filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication, WHICH WAS DENIED.

On April 21, 2023, Defendant filed a Motion to Compel an Independent Medical Examination. Plaintiff’s Opposition was filed on May 4, 2023. Defendant’s Reply was filed on May 10, 2023.

LEGAL STANDARD

The Civil Discovery Act authorizes discovery in the form of a physical or mental examination of a party whose physical or mental condition is in controversy in the action. (Code Civ. Proc., § 2032.020, subd. (a).) If the action is one for personal injuries, the defendant may demand exactly one physical examination of a plaintiff without leave of court. (Id., § 2032.220, subd. (b).) The examination may not include “any diagnostic test or procedure that is painful, protracted, or intrusive” and must be conducted “within 75 miles of the residence of the examinee. (Id., § 2032.220, subd. (a).) 

A demand for an examination that exceeds the dictates of Code of Civil Procedure sections 2032.210 to 2032.260 requires the Court’s approval. (Code Civ. Proc., § 2032.310, subd. (a).) Accordingly, a mental examination requires the Court’s approval. (Ibid.) A motion for a mental examination “shall 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” and include a meet and confer declaration. (Code Civ. Proc., § 2032.310, subd. (b).) The Court may only grant such leave for good cause, so as to protect the examinee from “excessive and unwarranted intrusions.” (Id., § 2032.320, subd. (a); Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 428.) 

“Good cause is established by facts that ‘appear in the record as a demonstrable reality.’ [Citation.] Mere speculation, standing alone, will not suffice.” (Sporich v. Super. Ct., supra, 77 Cal.App.4th at 428, quoting People v. Gates (1987) 43 Cal.3d 1168, 1199.) For example, without further showing, an attorney’s opinion that an examination is necessary does not provide good cause. (Ibid.) 

But otherwise, the statute is “silent on both the nature of good cause and the manner in which it is to be shown.” (Greyhound Corp. v. Superior Court In and For Merced County (1961) 56 Cal.2d 355, 388.) Generally, statutes relating to discovery procedures, including examinations, “should be liberally construed in favor of disclosure.” (Harabedian v. Superior Court In and For Los Angeles County (1961) 195 Cal.App.2d 26, 31.) Yet simultaneously, “cumulative discovery is prohibited,” as is discovery requested without knowing precisely what one seeks, in an attempt to “obtain all possible information for the purposes of his case,” i.e., fishing. (Sporich v. Super. Ct., supra, 77 Cal.App.4th at 428; Greyhound Corp. v. Super. Ct. In and For Merced Cty., supra, 56 Cal.2d at 384.) 

ANALYSIS:

Defendant moves to have the Court compel Plaintiff to undergo an independent medical examination.[1]

Defendant argues that Plaintiff has put her mental condition in controversy by alleging that she continues to “suffer humiliation, embarrassment, anxiety, mental anguish and emotional distress. Plaintiff was required to and did employ, and will in the future employ, physicians and health care providers to examine, treat and care for Plaintiff, and did, and will in the future, incur medical and incidental expenses.” (Motion 3: 16-21, citing to Complaint ¶¶ 64, 76, 83.) Additionally, the prayer for relief seeks judgment on causes of action for “[p]hysical, mental, and emotional injuries, pain, distress, suffering, anguish, fright, nervousness, grief, anxiety, worry, shame, mortification, injured feelings, shock, humiliation and indignity, as well as other unpleasant physical, mental, and emotional reactions, damages to reputation, and other non-economic damages.” (Id. at 22-25, Comp. Prayer for Relief, ¶ 1.)

Defendant argues that good cause exists to have Plaintiff undergo a mental examination. In Vinson, the Court found that due to the plaintiff’s request for damages, a mental examination was warranted. Because Plaintiff “will testify that Defendant City’s action caused her to suffer ongoing anxiety,” is sufficient to require a mental examination as it is the only means of discovering Plaintiff’s mental health issues. Lastly, the proposed time, place, manner, conditions, scope, and nature of the exam are as follows:

·         The exam will be conducted by David K. Wellisch, Ph.D

·         The exam will last six to eight hours

·         The exam will not include painful, protracted, or intrusive tests or procedures,

·         The exam will consist of a detailed psychiatric interview, mental status examination and the Personal Assessment Inventory (“PAI”) test and the Minnesota Multiphasic Personality Inventory-2-RF test.

·         The exam will take place on a date mutually agreed upon, at 9:00 at 450 N. Bedford Dr., Suite 310, Beverly Hills, CA 90210.

·         Only Dr. Wellisch and Plaintiff will be present, but the exam will be recorded.

Plaintiff argues that her mental condition has not been placed in controversy. Nothing in the claims raised by Plaintiff would be considered severe, ongoing emotional distress. In Vinson, which Defendant also relies on for the contention that an examination is required, the court stated that “A simple sexual harassment claim asking compensation for having to endure an oppressive work environment or for wages lost following an unjust dismissal would not normally create a controversy regarding the plaintiff's mental state. To hold otherwise would mean that every person who brings such a suit implicitly asserts he or she is mentally unstable, obviously an untenable proposition.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840(Vinson).) Plaintiff also argues that she has not waived her privacy rights and offered a stipulation pursuant to CCP § 2032.320(c).[2]

Vinson is instructive.  There, Plaintiff alleged sexual harassment and intentional infliction of emotional distress and sought a Writ of Mandate to prohibit a psychiatric exam “or in the alternative, to protect her  from any inquiry into her sexual history, habits or practices.” (Vinson, supra, 43 Cal.3d at p. 833.) Initially, the Court agreed that filing a sexual harassment lawsuit and alleging mental and emotional damages does waive all privacy interests, but rather it is more nuanced. The first inquiry is whether Plaintiff has placed their mental or physical condition in controversy. “In the case at bar, plaintiff haled defendants into court and accused them of causing her various mental and emotional ailments. Defendants deny her charges. As a result, the existence and extent of her mental injuries is indubitably in dispute. In addition, by asserting a causal link between her mental distress and defendants' conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress. We thus conclude that her mental state is in controversy. (Vinson, supra, 43 Cal. 3d at pp. 839–40.) The Supreme Court continued that the “in controversy” requirement is only the first step in the good cause analysis. Specific facts must also be alleged to warrant such an intrusion. (Id. at. p. 840.) The Supreme Court found that upon examining the Plaintiff’s pleadings, where Plaintiff alleged she continued to suffer from various mental health maladies, the requisite good cause had been established. This too did not end the inquiry. Plaintiff still enjoyed a limited right to sexual privacy. “We cannot agree that the mere initiation of a sexual harassment suit, even with the rather extreme mental and emotional damage plaintiff claims to have suffered, functions to waive all her privacy interests, exposing her persona to the unfettered mental probing of defendants' expert.” (Vinson, supra, 43 Cal. 3d at p. 841.) Ultimately, the Supreme Court held that the Writ should issue, finding that while good cause existed for the  examination to occur,  the scope of the examination should be limited. (Id. at p. 847.)   

Here, despite Plaintiff’s claim that the mental condition is not in controversy, the complaint alleges the following: “Plaintiff has suffered both general and special damages in the past and present and will continue to suffer such damages in the future for an unknown period of time… also suffered extensive general damages in the form of anxiety, anguish, and mental suffering. Plaintiffs damages are continuing and in…” (Complaint ¶ 56.) In each cause of action, Plaintiff makes the following allegations: “Plaintiff suffered and continues to suffer humiliation, embarrassment, anxiety, mental anguish and emotional distress. Plaintiff was required to and did employ, and will in the future employ, physicians and health care providers to examine, treat and care for Plaintiff. . . .” (Complaint ¶¶ 64, 76, 83.) Thus, the complaint clearly alleges that Plaintiff’s mental suffering is ongoing and continuing. In addition, Plaintiff filed verified discovery responses regarding treatment she received as recently as 2021. (Cadena Dec. ¶ 8.) Plaintiff’s reliance on CCP § 2032.320(c)(1) is misplaced. The full text of the relevant section reads, as follows: “A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.” (CCP § 2032.320(c)(1), emphasis added.)  Here, there was no infliction of physical contact causing physical injuries. To be sure, this is not a personal injury complaint that primarily alleges  physical trauma and, in conjunction, “garden variety” emotional distress and mental damages. Rather, the only claimed physical injuries flowing from the sexual harassment are headaches and stomachaches. (Mot. Exhibit 4) whereas the bulk of damages alleged are emotional distress and mental injuries. Therefore, this subdivision is not helpful. Accordingly, since the pleadings allege that the damages are centered around emotional distress and mental damages, the Court finds that Plaintiff’s mental condition is in controversy.

Additionally, the Court finds that the Defendants have set forth specific facts establishing good cause for the examination to determine the nature and scope of any present  mental and emotional injuries and “need for future medical care and treatment.” (Mot. Ex. 2, Declaration of David K. Wellsich, Ph.D.)  Moreover, the proposed scope of the examination sufficiently protects Plaintiff’s privacy interests. (Mot. Ex. 2, Declaration of David K. Wellsich, Ph.D.) Specifically, the three hour psychiatric examination will not involve “invasive or painful procedures,” and the other two tests, the Personal Assessment Inventory (“PAI”) test and the Minnesota Multiphasic Personality Inventory-2-RF test, can range from 3 to 4 hours for one and 40 minutes to 6 hours for the other. ((Mot. Exhibit 2, Declaration of David K. Wellsich, Ph.D.,¶¶ 5-11.)  Dr. Wellsich adds that these times are estimates, which is dependent on the “speed with which Plaintiff’ is able to convey the information they need to fully explain their injurious experience and the speed with which they take the tests.” (Mot. Ex. 2, Dec. Wellsich, ¶ 9.) Most significantly, there is no suggestion that the exam will probe into Plaintiff’s sexual privacy. In sum, the proposed scope of the examination sufficiently protects Plaintiff’s remaining privacy interests.

            Motion to Compel Independent Medical Examination is GRANTED.

CONCLUSION:

For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Compel Independent Medical Examination is GRANTED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             May 17, 2023              _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court