Judge: Virginia Keeny, Case: 19STCV31340, Date: 2022-12-07 Tentative Ruling

Case Number: 19STCV31340    Hearing Date: December 7, 2022    Dept: W

RENE CRUZ ARRIOLA, ET AL. V. COZZIA USA LLC, ET AL.

DEFENDANT BURTON FEINSTEIN’S MOTION FOR LEAVE TO COMPEL MENTAL EXAMINATION OF GERNINO CRUZ EUSTAQUIO

Date of Hearing:        December 7, 2022                             Trial Date:       March 6, 2023

Department:              W                                                        Case No.:        19STCV31340

Moving Party:            Defendant Burton Feinstein

Responding Party:     Plaintiffs Rene Cruz Arriola, individually and as successor in-interest to Gertudes Santiago Cruz; Reggie Cruz Arriola, individually and as successor in-interest to Gertudes Santiago Cruz; and Gernino Cruz Eustaquio, individually and as successor in-interest to Gertudes Santiago Cruz

BACKGROUND

This is a products liability action. Plaintiffs allege on September 5, 2017, a Cozzia Massage chair caught fire while being used in a foreseeable manner. Plaintiff Gertudes Santiago Cruz and Gernino Cruz Eustaquio were at the subject premises when the fire occurred, and Plaintiff Gertudes died as a result of that fire.

On September 4, 2020, Plaintiffs Rene Cruz Arriola, individually and as successor in-interest to Gertudes Santiago Cruz; Reggie Cruz Arriola, individually and as successor in-interest to Gertudes Santiago Cruz; and Gernino Cruz Eustaquio, individually and as successor in-interest to Gertudes Santiago Cruz filed a complaint against Defendants Cozzia USA LLC, Mor Furniture for Less, Inc., and Burton Feinstein asserting causes of action for strict product liability and negligence.

On June 15, 2020, Mid-Century Insurance Company filed a complaint for equitable subrogation for damages to property against Defendants Cozzia USA LLC and Mor Furniture for Less, Inc.

On May 11, 2020, Cozzia USA LLC filed a cross-complaint against Defendant Feinstein asserting causes of action for equitable indemnity, contribution and apportionment, and declaration relief. On August 28, 2020, Mor Furniture for Less, Inc. filed a cross-complaint against Defendant Cozzia USA LLC and Defendant Feinstein asserting causes of action for equitable indemnity, implied indemnity, contribution, apportionment, declaratory relief, and duty to defend. Defendant Mor Furniture for Less, Inc. filed an amended cross-complaint on October 19, 2020.

On October 28, 2020, this court find the instant action related to 20STCV22427, Mid-Century Insurance Company v. Cozzia USA LLC, et al.

Defendant Feinstein filed a cross-complaint against Defendants Cozzia USA LLC and Mor Furniture for Less, Inc. for indemnity and contribution.

[TENTATIVE] RULING:

Defendant Burton Feinstein’s Motion for Leave to Compel Mental Examination of Gernino Cruz Eustaquio is GRANTED.

DISCUSSION

Defendant Burton Feinstein moves the court for an order to compel the mental examination of Plaintiff Gernino Cruz Eustaquio.

Where any party seeks to obtain discovery by a mental examination, the party shall obtain leave of the court. (CCP § 2032.310(a).) A mental examination shall 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. (CCP § 2032.020(c)(1).) “The only statutorily authorized justification for ordering a mental examination is that the ‘mental condition’ of the examinee is ‘in controversy.’” (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1886.)  In the absence of an allegation that plaintiff has any current mental injury as a result of defendant’s alleged conduct, her present mental condition is not directly relevant. (Ibid.) Further, “[m]ental examinations are not authorized for the purpose of testing a person’s ‘credibility.’”  (Ibid.) 

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, and shall be accompanied by a meet and confer declaration. (CCP § 2032.310(b).) The Court shall grant the motion only for good cause shown. (CCP § 2032.310(a).) “The way to describe these ‘diagnostic tests and procedures’–fully and in detail—is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.) 

Prior to filing the opposition, Plaintiff’s counsel and defense counsel met and conferred regarding the mental examination of Plaintiff. The parties have stipulated to most of the terms of the mental examination but have failed to agree upon Plaintiff’s proposed Paragraph 19, which states the following:

19. The information learned or obtained by Dr. Sreenivasan can only be used by counsel for Burton Feinstein. Should Burton Feinstein no longer be a party to this action prior to the disclosure of Dr. Sreenivasan’s opinions through deposition or trial, any information learned or obtained by Dr. Sreenivasan during the examination cannot be used in this action.

Plaintiff argues although Cozzia and Mor Furniture are Defendants in this case, they have not sought to examine Mr. Eustaquio. Accordingly, they should not be entitled to discover the information learned by Dr. Sreenivasan until deposition or trial. Plaintiff contends designation of the expert as an expected trial witness is not itself an implied waiver of the privilege. (See Shooker v. Sup.Ct. (Winnick) (2003) 111 Cal. App. 4th 923, 930.) Moreover, retaining an expert in a consultant capacity allows his or her reports to remain protected as work product and counsel can neither communicate with the consultant, nor depose him or her, nor designate him or her as their expert. (Kennedy v. Sup.Ct. (Lucky Stores, Inc.) (1998) 64 Cal. App. 4th 674, 679.)

Defendant contends should the court allow Plaintiff to include Paragraph 19 in the Order, then the other defendants will separately proceed with a mental examination of Plaintiff, utilizing their own mental health expert. As a result, having Plaintiff undergo a separate mental examination with a different expert selected by the other defendants will unnecessarily complicate the trial if there are multiple defense experts providing opinions responding to Plaintiff’s emotional damage claims.

The court agrees with Defendant. Each case cited by Plaintiff concern attorney work product and in the instant matter, Plaintiff does not hold the “privilege” for attorney work product. In Shooker, the question was whether attorney work product (and attorney client privilege) was waived when the expert was designated. The court said no. However, the instant matter differs as it is the Defendant here who wants to waive the attorney work product. In Kennedy, the question was whether the party that held the privilege (Lucky) was trying to work around waiver. This is not an issue here. Here, Defendant wants to waive attorney work product and give the report to other named defendants. This is not a decision that can be made by Plaintiff. Dr. Sreenivasan is not Plaintiff’s expert.

Accordingly, Paragraph 19 is omitted from the stipulation.