Judge: Virginia Keeny, Case: 20STCV05335, Date: 2022-09-27 Tentative Ruling
Case Number: 20STCV05335 Hearing Date: September 27, 2022 Dept: W
JOHN FF DOE v. doe 1
motion to obtain leave of court to perform mental
examination on plaintiff pursuant to c.c.p. § 2023.310
Date of Hearing: September 27, 2022 Trial Date: March 30, 2023
Department: W Case
No.: 20STCV05335
Moving Party: Defendant,
Doe 1 (Los Angeles Unified School District)
Responding Party: Plaintiff, John FF Doe
BACKGROUND
This action arises from acts of sexual
abuse committed by a former elementary school teacher at Hazeltine Avenue
Elementary School upon Plaintiff John FF Doe (“Plaintiff”), a former elementary
school student, from approximately September 1974 through June 1975.
On February 10, 2020, Plaintiff
initiated the present action by filing a Complaint against Doe 1 (who has since
identified itself as Defendant Los Angeles Unified School District, hereinafter
“Defendant LAUSD”), and Does 2 through 100.
Plaintiff’s operative Complaint alleges the following causes of action
against Defendant LAUSD: (1) Negligence; (2) Negligent Supervision; (3)
Negligent Hiring/Retention; (4) Negligent Failure to Warn, Train, or Educate;
(5) Constructive Fraud; (6) Intentional Infliction of Emotional Distress; (7)
Sexual Harassment; (8) Breach of Fiduciary Duty; and (9) Public Entity
Liability for Failure to Perform Mandatory Duty.
On May 27, 2022, Defendant LAUSD filed
a Motion for Judgment on the Pleadings, moving for an Order entering judgment
in its favor, and against Plaintiff, without leave to amend, with respect to
the following causes of action: Fourth, Fifth, Sixth, Seventh, Eight, and Ninth
Causes of Action.
On May 31, 2022, Defendant LAUSD filed
the present Motion to Obtain Leave of Court to Perform Mental Examination on
Plaintiff Pursuant to C.C.P. § 2032.310.
On June 13, 2022, Plaintiff filed an
Opposition to Defendant LAUSD’s Motion to Obtain Leave of Court to Perform
Mental Examination on Plaintiff Pursuant to C.C.P. § 2032.310.
On June 17, 2022, Defendant LAUSD filed
a Reply in response to Plaintiff’s Opposition to Defendant’s Motion to Obtain
Leave of Court to Perform Mental Examination on Plaintiff Pursuant to C.C.P. §
2032.310.
On September 6, 2022, Defendant LAUSD’s
Motion for Judgment on the Pleadings was granted, without leave to amend, as to
Plaintiff’s Fourth, Fifth, Seventh, and Eighth Causes of Action, and was denied
as to Plaintiff’s Sixth and Ninth Causes of Action.
[Tentative] Ruling
Defendant LAUSD’s Motion to Obtain
Leave of Court to Perform Mental Examination on Plaintiff Pursuant to C.C.P. §
2032.310 is GRANTED.
LEGAL
STANDARD
A court order is required to
obtain a party’s mental examination.
(Code Civ. Proc. § 2032.310, subd. (a).)
Such an order may be made only after notice and hearing, and for
“good cause shown.” (Code Civ.
Proc., §§ 2032.310, subd. (c), 2032.320, subd. (a).)
The motion must state the time, place, identity,
and specialty of the examiner, and the “manner, conditions, scope and nature of
the examination.” (Code Civ. Proc., §
2032.310(b).) “An order granting a
physical or mental examination shall 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.” (Code Civ. Proc., § 2032.320(d).) “The court is to describe in detail who
will conduct the examination, where and when it will be conducted, the
conditions, scope and nature of the examination, and the diagnostic tests and
procedures to be employed. 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.)
The examination will be limited to
whatever condition is “in controversy” in the action. (Code Civ. Proc., §
2032.020(a).) This means that the
specific injury or subject of the litigation must be directly invoked by the
examination. (See Roberts v.
Superior Court (1973) 9 Cal.3d 330, 337.) By alleging a causal link between the
emotional distress and the defendant's conduct, a plaintiff “implicitly claims
it was not caused by a preexisting mental condition, thereby raising the
question of alternative sources for the distress.” (Vinson v. Superior Court (1987)
43 Cal.3d 833, 840.) However, a
mental examination is only appropriate where the plaintiff alleges continuing
emotional distress. (Doyle v. Sup.
Ct. (1996) 50 Cal.App.4th 1878, 1886-1887.) “While a plaintiff may place his mental state
in controversy by a general allegation of severe emotional distress, the
opposing party may not require him to undergo psychiatric testing solely on the
basis of speculation that something of interest may surface.” (Vinson, supra, 43 Cal.3d
at 840.)
ANALYSIS
Defendant
LAUSD moves for an Order permitting Dr. Julie M. Brovko, who is Defendant’s
designated expert, to conduct a mental examination of Plaintiff, pursuant to
Code of Civil Procedure section 2023.310.
(Code Civ. Proc., § 2023.310.)
Defendant
LAUSD’s present request is premised upon the fact that Plaintiff has placed his
mental health at issue in the present litigation. As may be gleaned from a review of the
operative Complaint, Plaintiff contends, “due to the sexual harassment,
molestation and abuse” committed by Defendant LAUSD’s former employee,
Plaintiff “began to experience multiple mental, emotional and psychological
problems . . . including, but not limited to: alcohol abuse, drug abuse, PTSD,
agoraphobia, sadness, anxiety, depression, fearfulness, insomnia, and
significant trust and control issues.
These issues continue to this day, and are expected to continue in the
future.” (Compl., ¶ 42.) In order to ascertain the cause and degree of
Plaintiff’s claimed “mental, emotional and psychiatric problems[,]” Defendant
LAUSD requests an Order permitting Dr. Julie M. Brovko—a licensed clinical
psychologist—to take a mental examination of Plaintiff. (Stephenson-Cheang Decl., Ex. A [Curriculum
Vitae of Dr. Julie M. Brovko].)
Defendant
LAUSD has properly identified the “time, place, manner, conditions, scope, and
nature” of the proposed mental examination.
Specifically, Defendant LAUSD specifies that the proposed mental
examination will take place in-person at a location “[t]o be determined in a
location convenient for Plaintiff” and during a time dependent upon Plaintiff’s
availability. (Mot., at p. 3:4-9.) Further, Defendant LAUSD specifies that the
proposed mental examination will be conducted over two days, and will comprise
of the following two forms of examination.
On the first day of examination, Dr. Julie M. Brovko will conduct an
interview of Plaintiff, which will span from four to eight hours, including
appropriate rest breaks, and will include discussion concerning the following
categories: (1) Plaintiff’s familial, social, environmental, and work history;
(2) Plaintiff’s medical and psychiatric history, including substance abuse
history, if any; (3) Plaintiff’s former and current relationships and traumas;
(4) The events which Plaintiff claims were the cause of his current emotional
damages; (5) The impact of the event(s) from Plaintiff’s perspective; and (6)
Plaintiff’s functioning since the occurrence of the event(s). (Brovko Decl., ¶ 7.) On the second day of examination, Dr. Julie
M. Brovko will conduct cognitive and psychological testing of Plaintiff, over a
span of three to five hours. The
specific cognitive and psychological testing which will be conducted have been
listed as follows: (1) Wechsler Adult Intelligence Scale Fourth Edition
(WAIS-IV; approximately 90 minutes); (2) Repeatable Battery for the Assessment
of Neuropsychological Status (RBANS; approximately 30 minutes); (3) Wide Range Achievement Test, Fifth Edition
(WRAT-5; approximately 15 minutes); (4) Minnesota Multiphasic Personality
Inventory-2-Restructured Form (MMPI-2_RF; approximately 50 minutes); (5)
Personality Assessment Inventory (PAI; approximately 60 minutes); and (6) Detailed
Assessment of Posttraumatic Stress (DAPS; approximately 30 minutes). (Id. ¶ 8.)
The Court
observes that Plaintiff concedes Defendant LAUSD is entitled to a mental
examination, pursuant to Code of Civil Procedure section 2032.310. (Opp., at p. 1:14 [“Plaintiff wants to be
clear that he does not oppose DOE 1’s request to obtain an IME”].) However, Plaintiff continues to oppose
Defendant LAUSD’s Motion on four specific grounds. The Court addresses Plaintiff’s four opposing
grounds below.
Preliminarily,
the Court observes that Defendant LAUSD has satisfied the meet and confer
requirement, as outlined within Code of Civil Procedure section 2032.310,
subdivision (b). (Code Civ. Proc., §
2032.310, subd. (b); Stephenson-Cheang Decl., ¶¶ 2-6.)
First,
Plaintiff opposes Defendant LAUSD’s Motion on the ground Defendant has failed
to identify the specific diagnostic tests and procedures which will be
conducted by Dr. Julie M. Brovko, rendering Defendant LAUSD’s request fatally
broad. (Opp., at p. 2:20-3:28.) However, a review of Defendant LAUSD’s
Motion, the Supporting Declaration of Dr. Julie M. Brovko, as well as the
preceding paragraphs of this Court’s Order, demonstrate that Plaintiff’s
argument is not well taken. The Court
finds Defendant LAUSD has properly identified the diagnostic tests and
procedures to be conducted during the proposed mental examination as Defendant
LAUSD has listed such tests and procedures by name. (Mot., at p. 3:28-7 [listing the specific
tests and procedures which will be conducted by Dr. Julie M. Brovko]; Carpenter,
supra, 141 Cal.App.4th at p. 260 [holding, the way to describe these
‘diagnostic tests and procedures’—fully and in detail—is
to list them by name.”].) Accordingly, the Court finds Plaintiff’s
argument insufficient to warrant denial of Defendant LAUSD’s present Motion.
Second, Plaintiff
opposes Defendant LAUSD’s Motion on the ground the medical examination proposed
would require inquiry of Plaintiff’s “medical history”, which Plaintiff has not
placed in issue by virtue of the operative Complaint. (Opp., at p. 4:3-28 [arguing, “an IME does
not permit a party to inquiry into a plaintiff’s medical history if that is not
at issue in the action”].) Plaintiff
argues that, while he has placed his mental health at issue, he has not
similarly placed the whole of his medical history at issue in this action. Plaintiff contends Defendant LAUSD’s proposed
examination “is seeking Plaintiff’s medical history, which . . . Plaintiff has
not placed . . . at issue in the instant matter.” (Opp., at p. 4:9-12.) The Court is unpersuaded by Plaintiff’s
argument for an array of reasons.
Initially, the Court observes that while Plaintiff argues “[t]he C.C.P.
does not allow for a psychiatrist to inquiry into a plaintiff’s medical history
during an IME”, Plaintiff cites absolutely no authority for such a
proposition. Further, the Court is
unpersuaded that such a proposition is meritorious. As previously stated, Plaintiff’s alleged
“mental, emotional and psychological problems” remain at the center of the
present litigation. Dr. Julie M. Brovko’s
inquiry into Plaintiff’s medical history, as it relates to Plaintiff’s mental
and psychological problems, over the past fifty years, are
unquestionably relevant as Plaintiff expressly maintains such problems began
following the alleged sexual abuse between 1974 and 1975, and continue to this
day. Accordingly, the Court concludes
Dr. Julie M. Brovko’s inquiry into Plaintiff’s “medical history” should be permitted,
but it must be related to plaintiff’s claimed history of “mental, emotional and
psychological problems.” Therefore, the
questions relating to medical history must be reasonably related to the
doctor’s inquiry into plaintiff’s psychological history and current mental
state.
Third,
Plaintiff opposed Defendant LAUSD’s Motion on the ground Defendant’s request
for a mental examination is merely an improper attempt to obtain a second
deposition of Plaintiff. (Opp., at p.
5:2-6:2.) Plaintiff argues Defendant
LAUSD’s proposed mental examination “has failed to appropriately limit the
scope of the interviewing to be done in Plaintiff’s IME” and, accordingly, the
proposed interview of Plaintiff is akin to a second deposition, which is
improper per the Court of Appeal’s Opinion in Golfand Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739 (Golfand). Plaintiff
is correct to the extent that the Court of Appeal in Golfand held that a mental examination should not amount
to a second or third deposition.
Specifically, the Court of Appeal held, the proponent of the mental
examination should not be made to recount the facts and circumstances of the
underlying incident where the proponent has already done so in a prior
deposition. (Golfand, supra, 108 Cal.App.4th at p. 745-746 [“A reading of the record reflects a
legitimate concern by the trial court that David not be made to recount the
facts and circumstances of the accident itself where he had done so at least
twice previously. This would amount to
giving the petitioner a third deposition as to the facts and circumstances of
the accident which, in the view of the trial court, was unnecessary. This was a legitimate exercise of the trial
court’s discretion.”].) The Court
recognizes that Plaintiff has already been subject to deposition by Defendant
LAUSD where Plaintiff testified as to the factual circumstances of the alleged
sexual molestation, harassment, and abuse.
(Opp., at p. 5:19-20.) The Court
further recognizes that Defendant LAUSD’s proposed mental examination contemplate
interviewing Plaintiff about “the events which Plaintiff claims was the cause
of his current emotional damages”.
(Mot., at p. 3:17-18.) Defendant
LAUSD’s expert justifies this renewed questioning by stating,
In conducting an IME about the psychological impact
of a traumatic event, it is not possible to obtain a full or accurate
assessment of trauma without questioning the plaintiff about their memory and
recall of what happened. A deposition transcript is not a substitute for an
interview conducted by a qualified psychologist. Information obtained in questioning
the plaintiff about the incident is essential for me to ask follow up questions
about specific triggers that may be relevant in coming to a determination about
the presence and extent of symptoms of psychological trauma. I have conducted
over 500 such interviews in my career and have the skills and training to
conduct this interview in a considerate and respectful manner so as to minimize
the impact on the plaintiff of recalling the details of the trauma.
(Brovko
Decl., ¶ 11.) The Court of Appeal in Golfand similarly recognized the importance of the
examiner’s inquiry into Plaintiff’s memory of the underlying events and
circumstances. The Court of Appeal in Golfand recognized that the effectiveness of a mental
examination would be wholly limited where the examiner was prohibited from
asking Plaintiff of the underlying events which are the purported cause of his
emotional distress. (Golfand, supra, 108 Cal.App.4th at p. 744 [holding the trial
court did not err by stating, “I’m not ruling that the physician [sic] cannot ask the child questions based on other testimony that he’s
given. I mean, obviously there would be
no exam of this nature otherwise.”].) The
Court of Appeal’s predominant concern was prohibiting the requirement that the examinee
give a second or third recitation of facts surrounding the relevant events and circumstances
during the mental examination. (Id. at p. 746 [holding, the trial court “could prohibit Dr. Epperson from
eliciting yet a third version of the facts and circumstances of the accident .
. . .”].)
Guided by Golfand the court will not preclude Dr. Brovko from
questioning plaintiff about the incidents and the effect of those incidents on
plaintiff’s mental state; the court
require that Dr. Brovko refrain from posing questions identical to those which
have already been posed during deposition.
Dr. Julie M. Brovko should be entitled to interview Plaintiff concerning
the facts and circumstances of the underlying abuse to the extent such questions
center upon the mental assessment of Plaintiff.
Lastly,
Plaintiff opposes Defendant LAUSD’s Motion on the ground Defendant’s proposed
mental examination should not be conducted in-person, but virtually due to
COVID-19. However, the Court is unpersuaded
as Plaintiff has failed to demonstrate that COVID-19 precautions will not be
employed during the mental examination, or that Plaintiff is of an
immunocompromised population which would place Plaintiff at high-risk of death
following potential exposure. Rather,
Plaintiff merely “hangs his hat” on the argument that “COVID-19 is still very
much a clear and present danger[,]” without providing any evidentiary facts
demonstrating that an in-person examination poses such “danger” to him or
others. Accordingly, the Court finds
Plaintiff’s final argument unpersuasive.
Based on the
foregoing, Defendant LAUSD’s request to conduct a mental examination of
Plaintiff is granted, pursuant to the limitations expressed in this Court’s
Order.
CONCLUSION
Defendant LAUSD’s Motion to Obtain Leave of Court to Perform Mental Examination on Plaintiff Pursuant to C.C.P. § 2032.310 is GRANTED.