MOTION TO COMPEL MENTAL EXAMINATION
Defendant’s motion to compel the mental examination of Plaintiff is granted, subject to the modifications stated below.
A court order is required to obtain discovery by means of a mental examination. (Code Civ. Proc., § 2032.310, subd. (a).) A motion to obtain discovery by means of 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 be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310, subd. (b).) The moving party must show good cause for the mental examination. (Code Civ. Proc., § 2032.320, subd. (a).)
If an action involves allegations of sexual abuse of a minor, and the examinee is less than 15 years of age, “the licensed physician or clinical psychologist shall have expertise in child abuse and trauma.” (Code Civ. Proc., § 2032.020, subd. (c)(2).) In addition, the examination of such a minor “shall not exceed three hours, inclusive of breaks.” (Code Civ. Proc., § 2032.340, subd. (a).) The Court may grant an extension of the three-hour limit for good cause.” (Code Civ. Proc., § 2032.340, subd. (b).)
If the Court grants the motion, the order “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).)
Defendant requests that Plaintiff be ordered to submit to an in person mental examination with its expert psychologist, Dr. Constance Dalenberg for a total time of eight hours, which includes an interview with Plaintiff’s parent(s). Defendant has submitted a declaration for Dr. Dalenberg regarding why the examination needs to be more than three hours, and include an interview of Plaintiff’s parent and be in person.
Plaintiff requests that the Court only allow that Plaintiff submit to a remote examination of no more than three hours that does not include a parental interview. Plaintiff also requests that the specific tests to be administered be provided in advance.
As an initial matter, the Court finds that Dr. Dalenberg is qualified to conduct the examination pursuant to Code of Civil Procedure section 2032.020, subdivision (c)(2). Specifically, she has been a professor teaching assessment and evaluation of trauma for over 25 years. She also has been President of the Trauma Psychology division of the American Psychological Association, associate editor of its premier journal on trauma, and is an internationally known expert on evaluating children after trauma. (Dalenberg Decl., at ¶ 2.) She states that she has personally used the procedures that are proposed with over 900 children in 30 years (including 300 cases similar to the case at bar) without receiving any complaints. (Dalenberg Reply Decl., at ¶ 3.) She outlines the procedures in paragraphs 7 through 13 of her declaration. Dr. Dalenberg declares that her time with children has always been less than six hours total and has never been restricted to only three hours. Given Dr. Dalenberg’s rationale and explanation of the process, as well as the claims that Plaintiff is alleging in this case, Defendant has shown good cause for the examination to exceed three hours. Accordingly, the Court orders that the mental examination of Plaintiff, inclusive of breaks, shall not exceed six hours.
Dr. Dalenberg also declares that as part of the procedure typically spends between two and two and a half hours interviewing the minor’s parent as part of her examination. (Dalenberg Reply Decl., ¶ 12.) Roe v. Superior Court (2015) 243 Cal.App.4th 138 deals with this issue. The court noted that “[n]othing in section 2032.020 contemplates a “collateral interview” of a minor’s parents as part of a mental examination of a party who is a minor.” (Id. at p. 145.) It further stated:
While interviewing the parents of a child to gain background and information about that child may be a sound professional practice from a psychiatrist’s viewpoint, section 2030.020’s plain language does not empower a trial court to make a discovery order requiring such parental interview as part of a mental examination of a party who is a minor. Such authority must come from the Legislature.
(Ibid. [footnote omitted].)
Defendant’s request for its expert to interview Plaintiff’s parent(s) as part of the mental examination, is denied.
The Code of Civil Procedure requires that the diagnostic tests and procedures be identified in any Court order compelling a mental health examination, regardless of age: “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).) “[T]he plain meaning of section 2032.320 is that the trial court must ‘specify the … diagnostic tests and procedures’ of the mental examination by naming the tests and procedures to be performed.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 261-262.)
Plaintiff requests that Defendant specify each test that will be identified. Defendant’s expert has indicated that the first session will consist of cognitive testing and a screen, and will either include the Wechsler Test or the Kaufman Test depending on whether the examination is recorded. The second session involves a screening test such as the MMPI, PAI, MMPI-A or Child Personality Inventory or SCID. According to Dr. Dalenberg, the tests involved with the third and fourth sessions cannot be specified as many unknowns may arise and time considerations might require a very short measure on some of these issues. Dr. Dalenberg has provided a list of possible tests to be conducted during the third and fourth sessions which was included with the Notice of the Examination. She states that any test not on the list would be given if Plaintiff listed or showed a specific symptom. (See Berkeley Decl., Exh. C [notice of mental examination].)
Given the discovery that has taken place which presumably should reveal Plaintiff’s history, symptoms and relevant medical information, the Court finds that it is a reasonable request to limit the examination to the tests identified in the notice of mental examination. While the Court does not require Dr. Dalenberg to specify only/exactly the tests that will be administered, she is required to state the universe of potential tests that may be given, and not to administer any test not therein identified.
Plaintiff also requests that the Court order the examination to be conducted remotely. The Court declines to so order, based on Dr. Dalenberg’s statements regarding the ineffectiveness of remote examinations, the precautions that will be taken regarding social distancing, and the fact that Plaintiff has been attending school in person for the past month. (Agudelo Decl., ¶ 4.)
Plaintiff is therefore ordered to appear in person for her mental examination with Dr. Dalenberg within 45 days of the notice of ruling unless otherwise agreed. No later than 30 days prior to the examination, Defendant shall serve a revised Notice that identifies all tests which may be administered. The examination shall not exceed six hours. Dr. Dalenberg is not permitted to interview Plaintiff’s parent(s) unless agreed by Plaintiff’s counsel.
Defendant shall give notice of the rulings.