Case Number: BC586199??? Hearing Date: November 07, 2016??? Dept: 37
CASE NAME: Cardona v. The Adelaide Company, LLC, et al.
CASE NO.: BC586199
HEARING DATE: 11/7/16
DEPARTMENT: 37
CALENDAR NO.: 10
TRIAL DATE: 12/12/17
NOTICE: OK
SUBJECT: Motion for Mental Examination
MOVING PARTY: Defendants The Adelaide Company, LLC, Agustina Groening, and Matt Groening
OPP. PARTY: Plaintiff Tania Cardona
COURT?S TENTATIVE RULING
The motion to compel Plaintiff?s mental examination is granted, subject to further discussion and order at the hearing regarding the date and time of the examination and the particular diagnostic tests and procedures to be used. The parties? respective requests for monetary sanctions are denied. Counsel for Defendants to give notice.
STATEMENT OF THE CASE
The factual background to the case is set forth in the court?s prior demurrer rulings. Plaintiff alleges the Groenings hired her through Defendant Marta Perrone, an individual doing business as Domestic Connections Agency, Inc., to work as a nanny for their six-month-old son. Plaintiff alleges that the Groenings subjected her to unlawful working conditions, including forcing her to work more than forty hours per week without overtime pay or meal and rest breaks, and making derogatory comments about Plaintiff?s race. Plaintiff alleges that she was terminated in retaliation for complaining about working conditions and requesting overtime compensation. Defendants now move to compel Plaintiff to undergo a mental examination in light of her allegations and discovery responses concerning alleged emotional injuries. For the reasons set forth below, the motion is granted.
DISCUSSION
I. General Principles Applicable to Motions to Compel Mental Examinations
Litigants may obtain discovery by mental examination of another party?s mental condition if it is ?in controversy in the action.? (Code Civ. Proc., ? 2032.020.) To do so, the party seeking discovery must obtain leave of court. (Id. ? 2032.310, subd. (a).) The court shall grant a motion for a mental examination for good cause shown. (Code Civ. Proc., ? 2032.320, subd. (a).) To establish ?good cause,? the moving party must produce specific facts to justify the discovery and show the subject matter is relevant to the action. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840 (Vinson).) Generally, the moving party may carry its burden by pointing to allegations of emotional injury in the complaint and by relying on the plaintiff? discovery responses. (See, e.g., id. at pp. 840-841; Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341 [?Allegations of physical or mental injury in the complaint and denial of the injury or the extent of injury places the condition in controversy?].) Subject to the plaintiff?s right to privacy, a defendant must be allowed to investigate the continued existence and severity of the plaintiff?s alleged damages. (Vinson, at p. 841.)
II. Good Cause for Proposed Mental Examination
The primary issue raised by this motion is whether Defendants have shown good cause for the proposed mental examination. On this point, Vinson is illustrative. There, the plaintiff filed suit for sexual harassment and intentional infliction of emotional distress. She alleged that after her former employer discharged her employment, she ?continue[d] to suffer diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation, and severe emotional distress.? (Vinson, supra, 43 Cal.3d at p. 840.) The Court reasoned that because the defendants denied her charges, ?the existence and extent? of the plaintiff?s mental injuries were ?in dispute.? (Ibid.) The Court also noted that ?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.? (Ibid.)
There is good cause for the mental examination. In the Second Amended Complaint (SAC), Plaintiff alleges that she has suffered and continues to suffer mental and emotional harm as a result of Defendants? conduct. (SAC ?? 55-56. 60, 64-67, 69-71, 81, 95-96, 103-106.) Additionally, in response to form interrogatories propounded by The Adelaide Company, LLC, Plaintiff stated that she suffers ?emotional upset and trauma, consisting of anxiety, stress, fear, worry, depression and anger.? (Knight Motion Decl., Exh. B, Nos. 6.3.) She also stated the emotional trauma was ?[b]ecoming worse? and was ?[c]onstant.? (Ibid.) Plaintiff confirmed the nature and extent of her emotional injuries as recently as October 21, 2016, in response to form interrogatories propounded by Defendant Marta Perrone. (Knight Reply Decl., Exh. B, Nos. 6.2-6.3.)
Accordingly, Defendants have shown good cause for a mental examination regarding the nature and extent of Plaintiff?s alleged mental injuries.
III. Procedural Requirements
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,? and must be accompanied by a meet-and-confer declaration. (Code Civ. Proc., ? 2032.310, subd. (b).) Similarly, an order granting a 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.? (Id. ? 2032.320, subd. (d).) The examination must be performed by a licensed physician or a licensed clinical psychologist who holds a doctoral degree in psychology and has at least five years of postgraduate experience in the diagnosis of emotional and mental disorders. (Id. ? 2032.020, subd. (c), (e).)
Plaintiff contends that Defendants have failed to comply with several procedural requirements for a motion to compel a mental examination. First, she argues that Defendants failed to meet and confer in good faith on the issue. However, it appears that Defendants attempted to resolve the issue informally before bringing this motion. On September 1, 2016, Defendants served their demand for an independent mental examination, to which Plaintiff objected. On October 7, 2016, Defendants sent a letter to Plaintiff?s counsel to meet and confer on the issue, requesting that Plaintiff stipulate to an independent mental examination. (McKnight Motion Decl., ? 6, Exh. E.) Plaintiff did not respond to the letter, and Defendants then filed this motion on October 14, 2016.
Plaintiff also contends that the motion is untimely, since the discovery cutoff date of October 28, 2016 has already passed and any mental examination would take place after the cutoff. However, the motion itself is not untimely simply because the discovery cutoff date has passed. As Defendants point out in the reply, the motion was served and filed before the cutoff date, and Defendants should not be penalized simply because the hearing for the motion falls after the cutoff. Additionally, to the extent Plaintiff?s failure to respond to the October 7, 2016 meet-and-confer letter delayed the mental examination, there is authority that Plaintiff may be estopped from relying on the discovery cutoff. (See, e.g., Sears, Roebuck and Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1351-1352.) For these reasons, the motion is not untimely.
In the event the court grants the motion, Plaintiff requests that the applicable guidelines for an independent examination be set forth in the court?s order per the Code. An order granting a 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, subd. (d).) On two points, the court may provide guidelines for the examination. First, the examination is to be performed by Linda Alvarez, Ph.D., who is qualified to perform the examination. (Knight Motion Decl., Exh. F.) Second, the examination shall occur at Dr. Alvarez?s office, which is located at 12304 Santa Monica Boulevard, Suite 210, Los Angeles, California 90025. (Knight Motion Decl., Exh. C.)
However, it is not clear when Defendants propose to conduct the interview or exactly what diagnostic tests the examination will consist of. For instance, it appears Defendants seek to permit Dr. Alvarez to ask ?questions relating to the nature and extent of Plaintiff?s alleged severe emotional distress that is at issue in this litigation; present symptoms and conditions, including the effect Plaintiff?s alleged severe distress has on Plaintiff?s life activities; medical history; and prior injuries and diseases.? (McKnight Motion Decl., Exh. C.) However, Defendants do not list the diagnostic tests and procedures to be used. (See Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260 [?The way to describe these ?diagnostic tests and procedures??fully and in detail?is to list them by name?].) The parties should be prepared to discuss these two issues at the hearing. Following further discussion at the hearing, the court may then include in the order the date and time of the mental examination as well as the diagnostic tests and procedures to be used.
Finally, the parties? respective requests for monetary sanctions are denied. Defendants maintain that the court should impose sanctions because Plaintiff refused to stipulate to the mental examination without substantial justification. (Reply 5:18-27.) However, in light of Defendants? failure to specify the precise diagnostic tests and procedures to be used during the proposed mental examination, as well as the issue of delay raised in the opposition, Plaintiff was justified in opposing the motion. Thus, Defendants? request for sanctions is denied, notwithstanding the fact there is good cause for such an examination.
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1. As noted in Ms. Rand-Lewis? declaration at ?? 6 and 12, although the court granted Defendants? request to continue the trial, Defendants did not seek and the court did not order an extension of the discovery cutoff date. That said, the trial is not scheduled until December 12, 2017 and this motion is being heard, and the examination will be conducted, well before trial. The parties should be prepared to discuss the subject of advancing the trial date at the hearing.