Judge: Yolanda Orozco, Case: 19PSCP00106, Date: 2022-08-04 Tentative Ruling

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Case Number: 19PSCP00106    Hearing Date: August 4, 2022    Dept: 31

MOTION TO COMPEL MENTAL EXAMIANTION IS GRANTED, IN PART 

Background 

On July 31, 2019, Plaintiff Ann Clark, as Guardian ad Litem for Elijah Van Clark, a minor filed a Complaint against Rowland Unified School District (“RUSD”), Susan Blanchard, and Does 1 to 50. The Complaint alleges (1) Negligence, (2) Sexual Battery (against Blanchard), and (3) Negligence, (4) Negligent Hiring, Training, Supervision, and Retention. 

Defendant RUSD filed an Ex Parte Application for an Order to Compel Plaintiff to appear for a Mental Examination, or for an Order Shortening the Time for Hearing on the Motion to Compel Plaintiff to Appeal for Mental Examination. The Court denied the Ex Parte on May 09, 2022 and ordered the District to bring a noticed motion. 

Defendant RUSD filed this instant Motion to compel Plaintiff’s Mental Examination on May 04, 2022. Plaintiff filed Opposition papers on July 21, 2022. RUSD filed a Reply on July 29, 2022. 

Meet and Confer Requirement 

“A motion for an examination under subdivision (a) 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.”  (Code Civ. Proc., § 2032.310, subd. (b).)¹  The motion  must be accompanied by a meet and confer declaration under section 2016.040.  (Id.)    

A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., § 2016.040.)  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)  “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.”  (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.)  Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery.  (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 433-34 (Obregon), citing Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1437.)    

Defense counsel for RUSD, Joseph Cheung, provided a declaration attesting to Cheung’s efforts to obtain a stipulation to the mental examination of Plaintiff via Plaintiff’s counsel. (Cheung Decl. ¶ 6, Exh. C, D.) The Court is satisfied with Defense counsel’s meet and confer efforts. 

Legal Standard 

To obtain discovery by mental examination, a party must obtain leave of court.  (Code Civ. Proc. (CCP), § 2032.310, subd. (a).) The motion for a mental examination must 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.”  (Id., § 2032.310, subd. (b).)  The motion must be accompanied by a meet and confer declaration.  (Id.)  Any party may obtain discovery by mental examination of another party’s mental condition if it is in controversy in the action.  (Id., § 2032.020.)   

The court shall grant a motion for a mental examination only for good cause shown.  (CCP § 2032.320(a).)  To establish “good cause,” the moving party must produce specific facts justifying the discovery and that the subject matter is relevant to the action.  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840 (Vinson).)  One party’s unsubstantiated allegation cannot put the mental state of another in controversy.  (Id. at p. 839.)  “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.”  (Id. at p. 840.)  If a party stipulates that no claim is being made for mental or emotional distress over and above that usually associated with the physical injuries claimed and that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages, a mental examination may only be ordered on a showing of exceptional circumstances. (CCP § 2032.320, subds. (b)-(c).)  

Additionally, the party who seeks to compel a mental examination bears the burden to specify the diagnostic tests and procedures to be conducted. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 267.) “Insisting that section 2032.320 means what it says—that the diagnostic tests and procedures must be specified—will result in an orderly and efficient means of balancing the interests of the plaintiff and defendant.  The defendant, aware that the court must name the diagnostic tests and procedures in the order granting a mental examination, will identify the potential tests and procedures in its moving papers.  The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary.” (Id.)  

Discussion 

Plaintiff is a minor who alleged that his teacher, Susan Blanchard, sexually assaulted him in January of 2018. (Compl. ¶¶ 5, 11.) 

Plaintiff is autistic with intellectual disabilities and is a special needs student at RUSD. RUSD moves to have psychologst Scott Grover Ph.D. conduct a mental examination (“DME”) of Plaintiff for up to six hours. The proposed examination will be made up of three parts (1) the interview of Plaintiff, (2) implementation of up to 11 listed psychological tests, and (3) an interview with Plaintiff’s mother, Ann Clark. 

Plaintiff disputes the necessity of a mental examination, but asks that if the Court grant RUSD’s request that the scope of the examination be limited. 

a.     Plaintiff’s Mental State is at Issue

Defendant RUSD moves for an Order to do an DME of Plaintiff given to his answers to form interrogatories, Nos. 6.2 and 6.3. (Cheung Decl. Ex B.) 

·       No. 6.1. Do you attribute any physical, mental or emotional injuries to the INCIDENT? Response: Yes. 

·       No. 6.2 Identify each injury you attribute to the INCIDENT and the area of your body affected.

Response: MENTAL & EMOTIONAL DISTRESS: Severe anxiety, fear of people, schools, the sky, driving in a car, elevators and tall buildings. Bouts of crying episodes. 

·       No. 6.3 Do you still have any complaints that you attribute to the INCIDENT? If so, for each complaint state: (a) a description; (b) whether the complaint is subsiding, remaining the same, or becoming worse; and (c) the frequency and duration.

Response: MENTAL & EMOTIONAL DISTRESS: Severe anxiety, fear of people, schools, the sky, driving in a car, elevators and tall buildings. Bouts of crying episodes. Elijah talks openly and often about suicide. 

The Court is satisfied that Plaintiff’s mental condition is at issue due to the damages he claims he sustained due to the sexual assault incident.  

b.     Scope of the Examination and Diagnostic Tests

Plaintiff argues RUSD’s proposed DME is overbroad and harassing because it seeks to examine and evaluate Plaintiff’s autism, cognitive functioning, and intellectual disabilities—none of which are undergird the damages claimed in this case.

Plaintiff’s counsel points out that as recently as November 2021, RUSD had evaluated and assessed Plaintiff for the determination of his Special Education eligibility criteria under the Individuals with Disabilities Education Act (IDEA) and the California Education Code (5CCR § 3030) and found Plaintiff to be eligible. Specifically, Plaintiff has already undergone extensive testing by RUSD in April 2021 and November 2021. (Weissman Decl. Part I, ¶ 8, Ex. 12) RUSD’s 2021 assessments included Cognitive Functioning and a Psycho-Educational Assessment (Ex. 12 at p. 001971, and at p. RUSD (EVC) 002034.) Dr. Grover proposes tests that screen cognitive skills. (Grover Decl. ¶ 6.) 

Plaintiff’s counsel researched the proposed tests and downloaded a summary of each of the eleven tests proposed by Dr. Grover to be given to Plaintiff. (Weissman Decl. Exh. 1, 2, 4, 5, 6, and 7.) According to Plaintiff’s counsel, the following tests impermissively assess Plaintiff’s cognitive skills.

·       Test No. 1: Wechsler Intelligence Scale for Children: The WISC Test is an IQ test administered to children between ages 6 and 16 by school districts and psychologists. The objective of the exam is to understand whether or not a child is gifted, as well as to determine 23 the student's cognitive strengths and weaknesses. 

·       Test No. 2. Wechsler Abbreviated Scale of Intelligence (WASI-11) (2nd Ed.) The WASI Test delivers an estimation of a student's general intellectual ability by measuring the verbal, nonverbal, and general cognition of individuals from 6 to 89 years of age. 

·       Test No. 6. Pervasive Developmental Disorder (PDD) Behavior Inventory - Screening Version: Purpose: Screens for autism spectrum disorder in children (ages 18 months to 12.5 years) The PDD Behavior Inventory-Screening Version (PDDBI-SV) identifies children at risk for an Autism Spectrum Disorder. 

·       Test No. 7. Childhood Autism Rating Scale (CARS-2) (2nd Ed.): Helps to identify children with autism and determine symptom severity through quantifiable ratings based on direct observation.

Plaintiff’s counsel also asserts some of the tests were designed to be given to parents and teachers, not a minor like Plaintiff.

·       Test No. 4. Behavior Rating Inventory of Executive Function (BRIEF): Assess executive function behaviors in the school and home environments with the BRIEF, a questionnaire developed for parents and teachers at school-age children. 

·       Test No 5. Children's Problems Checklist: Designed to be completed by the parent or guardian of children ages 5-12 years, the Children's Problems Checklist contains 202 items that cover topics including anxiety, self-image, relationships with peers, school performance, communication, attention, harmful behaviors, values, personal hygiene habits, and health.

Therefore, Plaintiff’s counsel asserts that test numbers 1, 2, 4, 5, 6, and 7 are not designed to evaluate Plaintiff’s mental and emotional distress. Moreover, Plaintiff has not alleged that he sustained any brain injury that affected his intellectual ability or cognitive skills, nor has Plaintiff placed his autism at issue. For this reason, Plaintiff finds the psychological testing proposed by RUSD to be unduly burdensome, harassing, or oppressive.

RUSD asserts that Dr. Grover “may” give test number 1, 2, 4, 5, 6, and 7 depending on the time constraints. Moreover, Dr. Grover should be allowed to administer the above tests to assess Plaintiff’s intellectual capabilities because they assist Dr. Grover in assessing Plaintiff's ability to understand the questions asked and this will permit Dr. Grover to see if the other tests designed to evaluate Plaintiff’s traumatic, anxious or depressive symptoms are understood by Plaintiff. Therefore, RUSD states that Dr. Grover should be permitted to administer test numbers 1, 2, 6, and 7.

The Court agrees in part with Plaintiff’s arguments. Plaintiff has undergone extensive testing by the district. It is undisputed that he has autism. The only damages sought here are for anxiety, generalized fears of people in various settings and crying bouts. Any testing performed by Dr. Grover should be to explore the presence of and causes for for the mental ailments Plaintiff claims to suffer.

For these reasons, the Court finds that the Wechsler IQ test (Test No. 1) is singularly inappropriate to administer to Plaintiff and will not be allowed. Test No. 6 screens for the presence of autism spectrum disorder. As Plaintiff has already been diagnosed with autism, Test No. 6 is superfluous and will not be allowed. Test Nos. 2 & 7 seem appropriate and will be allowed.

RUSD asserts that Tests Numbers 4 and 5 will only be given if Dr. Glover is allowed to interview Plaintiff’s mother.

c.      Interview of Plaintiff’s Mother

Plaintiff argues that under Section 2032.310, the interview of Plaintiff mother, Ann Clark, is not authorized and Plaintiff’s mother should not be examined without her attorney present. Plaintiff explains that RUSD has already deposed Ann Clark for 5 hours and Plaintiff’s grandmother for two days. Moreover, Plaintiff has produced medical reports and records relevant to Plaintiff’s emotional and mental distress claims which Dr. Grover can read.

RUSD provides no legal authority that would allow this Court to compel Plaintiff’s mother to be interviewed by Dr. Grover, let alone undergo a mental examination.  Test numbers 4 and 5 will not be administered to Plaintiff or Plaintiff’s mother.

Although Plaintiff’s mother's cooperation during the interview portion of Plaintiff’s examination would be useful, Ann Clark will not be interviewed by Dr. Grover unless she agrees to the interview. Moreover, because her interview would not fall under Section 2032.310, should Plaintiff's mother be interviewed, she should be permitted to have her attorney present.

RUSD argues that Plaintiff’s retained psychological expert should not be permitted to interview Plaintiff's mother, Ann Clark.  However, RUSD fails to provide any legal authority for this position. Ann Clark is free to consent to an interview with Plaintiff’s expert.   

Defendant RUSD’s request to interview Ann Clark is denied as is RUSD’s request that Plaintiff’s retained psychological expert be precluded from interviewing Ann Clark. RUSD has other discovery tools at its disposal to obtain the information it seeks.

d.     Time Limitation of Medical Examination

Plaintiff’s counsel requests that the time of the DME be limited to 3 hours. Under CCP Section 2032.340(a), cases involving allegations of sexual abuse of a minor less than 15 years of age “shall not exceed three hours, inclusive of breaks.” Although Plaintiff was 12 at the time of the alleged incident, he turned 16 years old in May of 2022. (Opp. at 6:9-11.) Plaintiff’s counsel asserts the 3-hour time limit is appropriate given Plaintiff’s intellectual disabilities and autism. 

RUSD asserts that the 3 hours for examination of Plaintiff is unreasonable. RUSD insists that because the DME is not to exceed six hours, excluding breaks, the time is needed due to Plaintiff’s autism. (See Grover Decl. ¶ 6.). Limiting the DME to six hours ensures that Plaintiff can take reasonable breaks throughout the interview and testing portions of the IME, including rest breaks, bathroom breaks, and meal breaks. (Grover Decl. ¶ 3.) Moreover, Dr. Grover is to inform Plaintiff of his right to take breaks as necessary. 

The Court finds that the DME should be limited to 5 hours, not including breaks. The 5-hour limitation is reasonable since Plaintiff’s mother will not be interviewed. (See Grover Decl. ¶ 7.) Plaintiff shall be given reasonable breaks through out the examination. 

e.      Limitation of Medical Examination Inquiry

Plaintiff asks that Dr. Grover’s interview be limited to the issues as framed in Plaintiff’s response to Form Interrogatories Numbers 6.1 and 6.3 and nothing more. Specifically, Plaintiff’s counsel requests that RUSD refrain from asking questions about Plaintiff’s medical history because Plaintiff has not claimed any physical injury from the sexual assault. (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 [“The patient thus is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.”].) 

Plaintiff’s counsel also requests that the mental examination be limited to the mental issues asserted by Plaintiff to have been caused by or exacerbated by the incident. (Citing Roberts v. Superior Court (1973) 9 Cal.3d 330, 337 [“the patient-litigant exception allows only a limited inquiry into the confidences of the psychotherapist-patient relationship, compelling disclosure of only those matters Directly relevant to the nature of the specific ‘emotional or mental’ condition which the patient has voluntarily disclosed and tendered in his pleadings or in answer to discovery inquiries.”].) Plaintiff has not identified which specific areas of Plaintiff’s medical history should be excluded from inquiry and why. 

RUSD asserts that preliminary questions about medical history are necessary for Dr. Grover to build rapport with Plaintiff. (Edwards v. Superior Ct. (1976) 16 Cal.3d 905, 910, quoting In re Spencer (1965) 63 Cal.2d 400, 411[“The basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject.”].) Moreover, Dr. Grover must be able to ask Plaintiff about his history with the alleged abuser, his pre-and post-feelings about her. Dr. Grover must also be able to inquire about the possible sources of Plaintiff’s emotional distress and fears, including mentally distressing live events that have impacted Plaintiff mentally or physically. 

The Court finds that RUSD has stated good cause for limited inquiry into Plaintiff’s medical history and should not be foreclosed from Dr. Grover’s mental examination. Dr. Grover should be allowed to explore if Plaintiff's symptoms, such as “bouts of crying episodes” or  anxiety, existed before the alleged incident. (Mot. Ex. B.) 

The Court finds that Dr. Grover may conduct a limited inquiry into Plaintiff’s medical history but only for the interview portion of the medical examination, but not the psychological testing portion. (See Grover ¶ 6(b).) 

f.      Audio Recording of Mental Examination

Plaintiff requests that the entire DME, including the interview, oral exam and test giving/taking be audiotaped and that Defendant be responsible for audiotaping the entire exam and produce a copy within 5 days of the exam to Plaintiff’s attorneys. Plaintiff also requests that Defendants be ordered to produce all reports and findings from its retained psychologist to Plaintiff’s attorney within 30 days of the exam and required by CCP Section 2032.610. 

RUSD does not oppose Dr. Grover producing his DME report within 30 days, pursuant to CCP Section 2032.610. However, RUSD requests that in turn, Plaintiff comply with CCP Section 2032.640 and simultaneously exchange a copy of any existing written report from Plaintiff’s expert or promptly provide any later report produced. 

This Court agrees that Dr. Grover should produce his DME report within 30 days and that Plaintiff provide information about any mental health examination by another health practitioner to Defendant as required under CCP Section 2032.640. 

As to the audio recording, if Plaintiff wishes to audio record the clinical portion, they may do so by placing the recording device in the exam room before the start of the clinical interview. That audio recording shall be kept in the custody of Plaintiff’s counsel, and a copy of of same may be provided to Defendant at its expense. 

Dr. Grover states that although no one else will be allowed inside during the examination, Plaintiff, or a representative of Plaintiff, including his counsel, will be allowed in the waiting room (Grover Decl. ¶ 8.) 

To the extent Dr. Grover may oppose the audio recording of the psychological testing portion of the DME by Plaintiff, the psychological testing portion will be recorded by Dr. Grover and a copy of the recording will be given to Plaintiff’s retained psychological expert, who is bound by the same protocols as Dr. Grover, within 30 days. This will ensure compliance with CCP Section 232.530 and address any objections Dr. Grover may have over recording the psychological testing portion of the DME. 

g.     Plaintiff’s Counsel Presence During the Examination 

The Court finds that Plaintiff’s counsel has failed to provide good cause as to why he should be present with Plaintiff during the mental examination. Accordingly, Plaintiff’s counsel may not be present during the independent medical examination of Plaintiff by Dr. Grover, but counsel may wait in the waiting room. 

Conclusion 

Defendant Rowland Unified School District’s Order to Compel Plaintiff Elijah Van Clark to appear for a mental examination is GRANTED as follows: 

1.     Plaintiff to appear for a mental examination (“DME”) by Scott Grover, Ph.D.

2.     The examination will not exceed five (5) hours, excluding breaks.

3.     Plaintiff will be expressly informed that he is entitled to take reasonable breaks throughout the interview and testing portions of the DME, including but not limited to rest breaks, bathroom breaks, and meal breaks.

4.     The examination will not include any diagnostic test or procedure that is painful, protracted, or intrusive. 

Scope of Examination 

5.     The examination will be conducted for the purpose of determining the nature and extent of Plaintiff’s injuries that are at issue in this litigation.

6.     The scope of the examination shall include an assessment of the extent of the Plaintiff's alleged emotional distress and psychological injuries relating to his claims against Defendant, and his ongoing complaints of emotional distress and psychological injuries relating to his claims against Defendant.

7.     Dr. Grover may ask Plaintiff about his knowledge of his mental health history, topics of which may including background information, a medical history as to the psychological, mental, and/or emotional conditions placed in controversy by Plaintiff in this case, interests, the reported circumstances of onset of the alleged emotional injury or injuries, and how those symptoms have unfolded over time to the present, including any other assessments, treatment, or functional impairment.

a.      However, Plaintiff shall not be asked any questions about his conversations with his counsel, or any person affiliated with Plaintiff’s counsel’s office, pursuant to Evidence Code § 950, et al.

8.     The DME will consist of a clinical interview portion and a psychological testing portion.

9.     During the clinical interview and testing portions of the DME, no one else shall be present in the room other than Dr. Grover and Plaintiff. Any counsel, family member or representative accompanying Plaintiff may wait in the designated waiting area during the DME.

10.  The mental examination will include psychological assessments that shall be administered by Dr. Grover. Dr. Grover may administer any or all of the following assessments:

a)               Wechsler Abbreviated Scale of Intelligence (WASI-II) (2nd Ed.)

b)               Personality Assessment Inventory – Adolescent (PAI-A)

c)               Behavior Rating Inventory of Executive Function (BRIEF)

d)               Childhood Autism Rating Scale (CARS-2) (2nd Ed.)

e)               Trauma Symptom Checklist for Children (TSCC)

f)                Clinician Administered PTSD Scale for DSM-5 (Child/Adolescent version (CAPS-CA-5) 10. Life Events Checklist-5 Standard (LEC-5 Standard)

g)               Severity Measures of Depression – Modified Patient Health Questionnaire (PHQ-A)

11.  The following assessments shall not be administered to Plaintiff:

a.      Wechsler Intelligence Scale for Children

b.     Children’s Problems Checklist

c.      Pervasive Developmental Disorder (PDD) Behavior Inventory – Screening Version 

12.  Dr. Grover shall not interview Ann Clark without authorization for Plaintiff’s counsel. 

Audio Recording of DME 

13.  The interview portion of the DME may be audio recorded by Plaintiff or a representative who may operate any audio recording device for Plaintiff. However, said representative may not sit in with Plaintiff and Dr. Grover during the interview portion. Dr. Grover shall also be permitted to audio record the DME, or any portion thereof. Neither Dr. Grover nor Plaintiff shall videotape the clinical interview with Plaintiff, nor any other portion of the examination.

14.  A copy of Dr. Grover’s audio recording of the DME will be given to Plaintiff’s retained psychologist within 30 days. 

Copy of DME Report 

15.  Dr. Grover shall produce his DME report within 30 days and copy will be given Plaintiff’s counsel pursuant to CCP Section 2032.610.

16.  Plaintiff will produce reports of any mental health examinations made by another practitioner as required by Section 2032.640. 

CONCLUSION

The Court GRANTS the Motion to Compel Mental Examination in part as described above. The examination must occur within 30 days unless the parties agree to a date beyond 30 days.

The parties waive notice. 

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.