Case Name: Girl Doe v. Los Altos School District, et al.

Case No.: 17CV307094

This case arises out of allegations plaintiff Girl Doe (“Plaintiff”), a minor, was sexually attacked, bullied and harassed by two boys while attending a school located within the jurisdiction of defendant Los Altos School District (“Defendant”). According to the allegations in the Complaint, the boys attacked Plaintiff behind an unfenced shed on two separate days during the lunch recess period. (Complaint, ¶¶ 10-11.) They pulled her pants down and her shirt up, touched her private areas with their hands and a stick, and poured dirt and mud down her pants. (Ibid.) During the first attack, only Plaintiff and the two boys were present. (Id. at 10.) On the second occasion, the boys brought another boy to watch and participate. (Id. at 11.) This third boy told another student and the two of them told the playground aide what was occurring behind the shed. (Ibid.)

On both occasions, all the students were under the direct supervision of Defendant who failed to take reasonable steps to protect Plaintiff. (Id. at ¶¶ 14-15.) As a result of the incidents, Plaintiff suffered serious injuries and damages, including the loss of society, companionship and enjoyment of her peers. (Id. at ¶¶ 24-25.) She will continue to incur future damages in the form of medical costs for the care and treatment of the injuries she suffered as a result of the attacks. (Id. at ¶ 26.) The Complaint alleges causes of action for negligence and negligence per se.

Currently before the Court are three discovery motions: (1) Defendant’s motion for a protective order; (2) Plaintiff’s motion to quash a business records subpoena served on the Office of Family Court Services (“FCS”); and (3) Defendant’s motion to compel an independent mental examination of Plaintiff.

I. Defendant’s Motion for Protective Order and Plaintiff’s Motion to Quash Business Records Subpoena

Defendant moves for a protective order related to obtaining information from FCS and Plaintiff moves to quash a business records subpoena Defendant served on FCS. Both of these matters pertain to Defendant’s attempt to obtain records, information and documents from FCS regarding a custody proceeding involving Plaintiff.

For context, Plaintiff’s parents have been divorced since around 2012. (See Brough Decl., ¶ 2.) Around 2016, Plaintiff’s father initiated a proceeding in the Santa Clara Superior Court’s family law division, seeking to modify the custody order then in place for Plaintiff. (Ibid.) A few months later, Plaintiff’s father sought an emergency screening and custody evaluation for Plaintiff based on his assertion she was having difficulty with all the residence changes with her mother. (Id. at ¶ 3.)

Shortly thereafter, FCS completed an emergency screening and recommended that Plaintiff’s parents participate in parallel parent counseling and Plaintiff attend therapy with a professional trained in the needs of children with separated parents. (Id. at ¶ 5.) Several months later, the family court appointed FCS to complete a full child custody evaluation, including observing and interviewing Plaintiff as well as interviewing her parents, step-parents, grandparents, therapists, and court-appointed attorney. (Id. at ¶ 8.) FCS completed its evaluation and submitted a report including a recommendation that Plaintiff participate in therapy to discuss her parents’ divorce and current life transitions and develop coping skills to manage symptoms of anxiety and depression. (Id. at ¶ 9.) Around this time, Plaintiffs’ parents also entered into a stipulated protective order providing that the entire Family Court Services file was to be marked confidential and not “exhibited or disclosed to other persons except as specifically provided for in the order” or “used for any other purposes or disseminated in any other form without the express order of the Court.” (Id., Exh. 8.)

Since then, Defendant has repeatedly attempted to obtain FCS records for use in this litigation. (Lewis Decl., ¶ 6.) Most recently, it served FCS with a business records subpoena and Plaintiff with a notice to consumer regarding the subpoena. (Lewis Decl., ¶ 3.) Around this time, Defendant also advised FCS of its intent to depose two FCS employees. (Brough Decl., ¶ 14.) In response, an FCS clerk advised Defendant that FCS would require the service of deposition subpoenas along with a protective order authorizing release of its records before it would respond. (Ibid.)

Plaintiff then filed the present motion to quash the business records subpoena while Defendant filed a motion for protective order.

A. Motion for Protective Order

Defendant moves for a protective order permitting FCS to release records requested in the FCS subpoena or, in the alternative, an in camera review to determine which documents should be released to the District. It also seeks court authorization to depose two FCS employees, Mandy Gutierrez and Caitlin MacCalla, who performed the emergency screening and custody evaluation for Plaintiff. This motion is problematic.

Defendant cites no enabling statute for the relief sought. Though broadly styled as a “motion for protective order,” Defendant fails to identify any corresponding statute and clearly is not actually seeking a protective order in a traditional sense. The Civil Discovery Act provides that, for good cause shown, a court may “limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that that information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.020.)

Here, Defendant is not seeking in any way to limit discovery. Rather, it is seeking to compel discovery. Defendant acknowledges that it is unable to obtain records from the FCS file, which its subpoena would require FCS to produce, because the family court entered a protective order explicitly stating that only counsel for the parties to the custody proceeding could obtain these records. It therefore seeks what is labeled as a “motion for protective order” but the entire motion is set up as a motion to compel discovery. For example, Defendant discusses the relevance of the documents sought and argues that any privacy interests are outweighed by its legitimate interest in the FSC records. Its alternative request for an in camera review of the FCS records is similarly framed as seeking production of those records to this Court to determine which can be disclosed.

Defendant also anomalously seeks preauthorization for depositions of FCS employees. This request further compounds the problems in this motion. First, as Defendant itself acknowledges, there is no authority supporting the proposition that a court can issue a preliminary order permitting the depositions of FCS employees. Second, the Local Family Rules enumerate a specific procedure that must be adhered to by any party wishing to depose an FCS employee, which do not contemplate the preauthorization of such a deposition. (See Super. Ct. Santa Clara County, Family Rules, rule 2D, Special Issues.) Finally, the proof of service for Defendant’s motion indicates that FCS was not even served, which further illuminates the impropriety of this motion. Thus, the Court concludes there is no authority permitting it to preauthorize depositions of FCS employees especially when FCS did not receive notice of this motion in the first instance.

In sum, Defendant’s entire approach to this motion for protective order is highly unusual and baffling to the Court. More fundamentally, no authority is cited for any of the relief sought.

As such, Defendant’s motion for protective order is DENIED.

B. Motion to Quash Business Records Subpoena

Plaintiff moves to quash the subpoena to FCS on the grounds it is procedurally defective and production of the requested documents is barred by the constitutional right to privacy, the official information privilege, the confidential nature of records kept by the family court division of the Santa Clara County Superior Court, and the stipulated protective order entered into by Plaintiffs’ parents. She does not identify the statute pursuant to which her motion is brought; thus, on its face, her motion is defective. (See Cal. Rules of Court, rule 3.1113(a).) With that said, Code of Civil Procedure section 1987.1 authorizes a court to quash entirely or modify a subpoena and “make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right to privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

The subpoena to FCS includes five document requests (“Document Requests”). (Lewis Decl., Exh. A, p. 5-6.) Document Request No. 1 seeks all documents related to the FCS’ emergency screening and/or evaluation of Plaintiff, including all intake forms, notes, observations, assessments, recommendations, correspondence, communications, court orders, testimony, transcripts, or other documents relating to the custody matter. (Ibid.) Document Request Nos. 2, 3 and 5 seek all communications between FCS and Plaintiff’s parents, any attorney for Plaintiff, and any mental health provider for Plaintiff. (Ibid.) Document Request No. 4 seeks all documents provided to FCS by Plaintiff’s parents relating to its emergency screening and/or evaluation of Plaintiff. (Ibid.)

First, Plaintiff argues the subpoena is procedurally defective because a notice to consumer was not provided to either of her parents as is required under Code of Civil Procedure section 1985.3. This contention is not well-taken.

Section 1985.3 provides in relevant part that, “[p]rior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum.” (Code Civ. Proc., ¶ 1985.3, subd. (b).) For purposes of this statute, “personal records” are defined as books, documents, other writings, or electronically stored information maintained by a “physician, dentist, ophthalmologist, optometrist…pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in Section 5102 of the Financial Code), state or federal credit union, [or] trust company” among others. Nothing indicates that FCS is an entity that maintains “personal records” of a consumer such that a notice to a consumer is a required. Thus, there is no basis for concluding that section 1985.3 required Defendant to serve such a notice to Plaintiff’s parents relative to its request for the FCS records.

Second, Plaintiff argues that these records are protected by her parents’ right of privacy and the official information privilege, and confidential under Family Code section 3111.

Generally, the party resisting discovery bears the burden of substantiating his or her objections to a discovery request. (See, e.g., Fairmont Insurance Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255.)

With respect to the objection on the ground the documents sought are confidential, Plaintiff argues among other things that Family Code section 3111 states that child custody evaluation reports prepared by a court-appointed evaluator are confidential and may not be disclosed under these circumstances. This argument is well-taken.

Family Code section 3111 provides in relevant part that any child custody evaluation report filed with the court by a court-appointed child custody evaluator is confidential and “shall not be made available other than as provided in subdivision (a) of Section 3025.5.” (Fam. Code, § 3111, subd. (a)-(b), emphasis added.) Family Code section 3025.5 (“Section 3025.5”), in turn, states that if a custody evaluation report contains psychological evaluations of a child or recommendations regarding custody of or visitation with the child, that information is confidential and may only be disclosed to certain individuals, including a party to the proceeding and his or her attorney, the child’s court-appointed attorney, a judicial officer, court employee, or family court facilitator of the superior court of the county in which the action was filed, or “any other person upon order of the court for good cause.” (Fam. Code, § 3025.5, subd. (a).)

Thus, it is clear that child custody evaluation reports prepared by court-appointed child custody evaluators are confidential and subject to disclosure only as provided for by Section 3025.5. Namely, when a report involves a psychological evaluation of a child or a recommendation regarding custody of or visitation with a child, that information may only be disclosed to specific persons enumerated by Section 3025.5.

Here, Defendant does not fall within any of the specified categories of persons to whom disclosure of these reports may be made. Moreover, it does not cite to and there do not appear to be any exceptions allowing for disclosure of the FCS reports to Defendant. By comparison, in the context of juvenile law, under which juvenile case files are statutorily designated as confidential, the Legislature has both enumerated specific persons entitled to disclosure and directed the Judicial Council to enact a specific, detailed procedure by which non-enumerated persons can obtain such files for use in other litigation. (See Welf. & Inst. Code, § 827; Cal. Rules of Court, rule 5.552.) Here, in contrast, there is no similar procedure. Thus, the logical conclusion is that the Legislature did not intend for such reports to be accessible except as specifically provided for in the statute. (See, e.g., Wells v. One2One Learning Found. (2006) 39 Cal.4th 1164, 1190 [the Legislature’s express enactment in one regard and its failure to create a similar enactment in another indicates that it knows how to include such an enactment when it intends to do so].)

Though Family Code section 3025.5, subdivision (a)(4), provides that child custody evaluations and reports may be disclosed to any other person upon order of the court for good cause, the Court is not convinced that the Legislature included this provision as a means by which persons such as Defendant may obtain confidential FCS files.

First, the language of Section 3025.5 seemingly indicates that the disclosure contemplated would occur in the context of or relative to the custody proceeding itself and not in a separate, unrelated civil litigation. For example, Section 3025.5 states that “[i]n a proceeding involving child custody or visitation rights…[confidential] information…may not be disclosed, except to [enumerated parties].” (Fam. Code, § 3025.5, subd. (a), emphasis added.) Similarly, the parties enumerated are those who would be directly interested in such a proceeding. Second, construing this statute to permit persons such as Defendant to obtain FCS files would be contrary to the Legislature’s intent to protect such information against disclosure based on its acknowledgment that the “personal details of a divorce proceeding, especially when child custody is disputed, are oftentimes painful.” (Sen. Jud. Com., analysis of Sen. Bill No. 1284 (2003-2004 Reg. Sess.) April 20, 2004, p. 1.)

The Court acknowledges these statutes only specifically reference the confidential nature of child custody evaluation reports, psychological evaluations, and custody or visitation recommendations, while the documents sought by the subpoena would also include any information, communications or documents that formed the basis of conclusions reached in such reports. However, logic dictates that if the Legislature has provided that the final reports, evaluations, and recommendations themselves are confidential, any documents or information used or relied upon to create them that are contained in FCS files would likewise be confidential and protected from disclosure.

Thus, the objection the FCS records are protected against disclosure because they are confidential under the Family Code has merit and the Court will not address the remainder of Plaintiff’s objections. This is not to say that Defendant may not obtain information that might otherwise be found in the FCS records (aside from child custody evaluation reports, psychological evaluations, and custody or visitation recommendations themselves) through other means. The Court makes no decision on that point. The Court’s ruling is limited to its finding that Defendant’s attempt to obtain this information directly from FCS is improper.

Accordingly, Plaintiff’s motion to quash the business records subpoena to FCS is GRANTED.

II. Defendant’s Motion to Compel Independent Mental Examination

Defendant moves to compel the independent mental examination of Plaintiff pursuant to Code of Civil Procedure section 2032.310 and 2032.320.

For context, counsel for the parties began preliminary discussions regarding Defendant’s proposal to conduct an independent mental examination of Plaintiff, which Plaintiff’s counsel agreed Defendant was entitled to. (Levine Decl., ¶ 11.) They discussed the potential location of the examination and Plaintiff’s counsel’s desire to audio record the examination. (Ibid.) Subsequently, Defendant’s counsel e-mailed Plaintiff’s counsel an initial written proposal for the independent medical examination, consisting of psychological testing by a licensed clinical psychologist and an interview with a licensed psychiatrist. (Id. at ¶ 13.) She proposed that the examination take place in Northern California on August 12 and 13, and stated that Defendant would pay for Plaintiff’s reasonable travel expenses from her home in San Diego County. (Ibid.) In response, Plaintiff’s counsel stated that only one mental examination was permitted, objected to one of the proposed dates, and stated the examination must take place within 75 miles of Plaintiff’s residence in Southern California. (Id. at ¶¶ 13-14.) She also asserted that, under Code of Civil Procedure section 2032.340, a mental examination of a child under the age of 15 in a case involving sexual abuse allegations cannot exceed three hours. (Id. at ¶ 14.) Defendant’s counsel replied that only one examination consisting of two components was being proposed and conducting the testing over two days would help avoid Plaintiff becoming fatigued. (Ibid.; Exh. 8.)

Unable to resolve the dispute, Defendant filed the present motion to compel an independent medical examination (“IME”) of Plaintiff.

A. Preliminary Issue

Plaintiff preliminarily contends that Defendant’s motion is procedurally defective because it does not identify the location of the evaluation, citing Code of Civil Procedure section 2032.310 in support. Section 2032.310 provides that a motion for a mental examination must specify the place of the examination among other things. (Code Civ. Proc., § 2032.310, subd. (b).) Here, Plaintiff asserts the motion only states that the IME will take place in “Northern California” and, thus, is procedurally defective. (Opp. at p. 13:8-10.) This argument is not well-taken.

At the outset, it is unclear if Plaintiff is asserting this procedural deficiency is a ground for denying the motion. To the extent she is attempting to make such an argument, she cites no authority in support.

In any event, her position is factually incorrect as it is premised on the proposition that Defendant’s motion only specifies the IME will take place in Northern California when, in fact, Defendant’s notice of motion and motion clearly state that the first part of the IME “will take place at 300 Tamal Plaza, Suite 140, Corte Madera, CA 94925)” and the second part will take place at “3841 24th Street, San Francisco, CA 94114 or at 177 Bovet Road, San Mateo, CA 94402.” (Mtn. at p. 2:14-16.) As such, the contention Defendant does not identify the location of the IME is flawed.

Thus, Plaintiff’s position is unsubstantiated and the Court will address the merits of the motion.

B. Defendant’s Entitlement to an IME

Discovery may be obtained by means of a mental examination of a party in any action in which the mental condition of that party is in controversy. (Code Civ. Proc., § 2032.020, subd. (a).) A party seeking to obtain discovery by means of a mental examination must obtain leave of court. (Code Civ. Proc., § 2032.310, subd. (a).) A court may only grant such leave upon a demonstration of good cause. (Code Civ. Proc., § 2032.320, subd. (a).) “Good cause” requires the moving party to produce specific facts justifying discovery and demonstrating that the inquiry is relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence, i.e., the moving party must show that the mental examination is reasonably calculated to lead to the discovery of admissible evidence. (Vinson, supra, 43 Cal. 3d at 840.)

Here, there is no dispute that Plaintiff’s mental condition is in controversy and that good cause exists for an IME. Plaintiff alleges in her Complaint that she suffered a “loss of society, companionship and enjoyment of his [sic] peers” as a result of the events at the school. (Complaint, ¶¶25, 34.) In response to discovery requests inquiring about physical, mental, and emotional injuries she suffered as a result of the incidents at the school, she reported various adverse emotional and psychological effects including withdrawal, timidity, clinginess, sadness, distress, discouragement, loss of enjoyment of life, grief, humiliation, inappropriate touching, and challenges with sleep, confidence, socialization, and academics among others. (Levine Decl., ¶ 4.) Plaintiff herself agrees that her mental condition is at issue in this litigation, stating that the “emotional turmoil overrides the physical harm she suffer[ed].” (Opp. at p. 7:8-9.) As such, an IME is relevant to Plaintiff’s allegations of harm and will assist Defendant in ascertaining the truth of her averments, the severity of her injuries, and the causes, including any contributory causes, of the harm alleged.

Therefore, Defendant is entitled to an IME of Plaintiff.

C. Details Regarding the Examination

If a court grants a motion for a mental examination, its order must 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).) These details regarding how the IME should be conducted is where the crux of the parties’ dispute lies.

1. Manner and Scope

Defendant seeks a two-part IME to be performed by Anlee Kuo, M.D. (“Dr. Kuo”), whose specialty is psychiatry, and Sarah Hall, Ph.D. (“Dr. Hall”), whose specialty is neuropsychology. Dr. Kuo and Dr. Hall estimate that their combined examinations of Plaintiff could take up to fourteen hours.

Defendant states that the first part of the examination conducted by Dr. Hall will consist of a “test battery of psychological tests,” which may include some or all of the following tests: Personality Inventory for Youth, Personality Inventory for Children, Rorschach Inkblot Test, Thematic Apperception Test, and the Roberts Apperception Test. (Mtn. at p. 2:24-28.) Defendant asserts that Dr. Hall may “add or subtract tests and test domains in response to information that she may receive about Plaintiff and her performance during the assessments.” (Id. at p. 2:28-3:1-2.) Based on her review of Plaintiff’s academic results and educational evaluation, Dr. Hall estimates this portion of the testing will take around four hours to complete. (Hall Decl. at ¶ 8.) Moreover, to the extent Plaintiff contends that she has suffered academic and/or cognitive harm as a result of the events at the school, Defendant also proposes conducting academic and neurocognitive testing as part of the examination. This may include some or all of the following tests at the discretion of the examiner: “Wechsler Individual Achievement Test, Third Edition (WIAT-III), Wechsler Intelligent Scale for Children, Fifth Edition (WISC-V), Delis-Kaplan Executive Function System (D_DEFS), Test of Memory and Learning Second Edition (TOMAL-2), Child and Adolescent Memory Profile (ChAMP), Memory Validity Profile (MVP), and Test of Memory Malingering (TOMM).” (Mtn. at p. 3:9-13.) Dr. Hall estimates this portion of her evaluation could take close to seven hours to complete. (Hall Decl. at ¶ 8.) Thus, Dr. Hall’s examination would be around 11 hours.

As for the second part of the examination, Defendant states it will include a psychiatric interview, observation and examination of Plaintiff by Dr. Kuo, which will be informed by the data obtained from Dr. Hall’s psychological and neurocognitive tests. (Hall Dec., ¶ 4.) Defendant presents a declaration by Dr. Kuo wherein she states she will conduct an in-depth interview of Plaintiff and, if available, her parents. (Kuo Decl. at ¶ 3.) This will include a detailed inquiry into Plaintiff’s functioning before the events as well as a thorough personal history that includes family and trauma histories, social and environmental factors, school history, legal history, as well as medical and psychiatric histories. (Ibid.) This is necessary, in part, to unravel issues of causation related to the injuries claimed as there were other circumstances in Plaintiff’s life (e.g. her parent’s divorce, mother’s re-marrying, and subsequent separation from her mother) that may be contributing causes. (Id. at ¶ 7.) Dr. Kuo estimates it will take “at least three (3) hours [to] complete” this portion of the IME. (Kuo Decl., ¶ 10.)

In opposition, Plaintiff argues that the separate examination by two examiners constitutes two IMEs, which is not permitted under Code of Civil Procedure section 2032.020. She concludes that an IME may only be conducted by either Dr. Hall or Dr. Kuo but not both. This argument is not well-taken.

Courts have held that nothing in the language of the statutes governing mental examinations limits the number of mental examinations that may be ordered. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1254; see also Kees v. Med. Bd. (1992) 7 Cal.App.4th 1801, 1814.) Though multiple examinations should not be ordered routinely, they may be permitted upon a showing of good cause. (Id. at 1255.) The Court is unaware of any authority specifically discussing what constitutes good cause for multiple examinations but at least one decision suggests that one factor to consider is whether the examinations are repetitive. (See Ibid.)

Here, Defendant claims that, though two doctors will be performing the IME, their work is complementary and not duplicative as one will be conducting a personal interview and the other will be performing psychological testing. It elaborates that both components are necessary, pointing to Dr. Kuo’s assertion the “psychological and neurocognitive testing [by Dr. Hall] is essential to understand, refine, or reinforce impressions developed through the clinical interview and observation.” (Kuo Decl., ¶ 12.) This argument is well-taken and it does not appear the examinations will be repetitive. Thus, good cause exists for the two-part structure of the IME.

Next, Plaintiff objects to the length of the proposed IME because, as of January 1, 2018, the Legislature enacted a statute limiting IMEs in circumstances such as hers to three hours, absent a showing of good cause. She contends Defendant has not established good cause for an IME that is longer than three hours.

At the beginning of this year, the Legislature enacted Code of Civil Procedure section 2032.340 (“Section 2032.340”) – a statute explicitly limiting the mental examinations of children less than 15 years of age to three hours, inclusive of breaks, in cases involving sexual abuse of the minor. (Code Civ. Proc., § 2032.340, subd. (a).) A court may grant an extension of this three-hour limit only upon a showing of good cause. (Code Civ. Proc., § 2032.340, subd. (b).)

Here, Plaintiff is nine years old and the proposed IME could take up to 14 hours to complete. Defendant contends that good cause exists for the length of the proposed IME because none of the concerns expressed by the Legislature in enacting Section 2032.340 are triggered by the circumstances in this case. In support, it references the legislative history behind the statute’s enactment and presents an accompanying request for judicial notice of various legislative history materials (e.g., reports and analyses by the Senate Judiciary Committee and Senate Rules Committee). Defendant’s request is made pursuant to Evidence Code section 452, subdivisions (c) and (h).

As a preliminary matter, Defendant’s request for judicial notice is GRANTED. “[R]eports of legislative committees and commissions are part of a statute’s legislative history, and may properly be subject to judicial notice as official acts of the Legislature [under Evidence Code section 452, subdivision (c)].” (Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 484, internal citations and quotation marks omitted; see also Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 39.) Moreover, these documents are helpful and relevant to the resolving the issues raised in this motion. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) As such, the legislative history documents are proper subjects of judicial notice.

The legislative history indicates that Section 2032.340 was enacted in response to reported abuses of mental examinations as a discovery tool in situations where “child victims of sexual abuse have been subjected to traumatizing mental examinations” by the defendant’s paid mental health examiners that require them to repeat the trauma of their experiences. (Def. RJN, Exh. 1 (Sen. Third Reading of Sen. Bill No. 755 (2017-2018 Reg. Sess.) May 2, 2017), p. 2.) Such examinations potentially consist of “unnecessarily long and abusive psychological exams of the children” or “interviews lasting four or more hours, despite prior interviews by specially trained law enforcement that resulted in videotape depositions being available for review.” (Id. at p. 5-6.) Moreover, sometimes they occur “despite the children have been previously diagnosed with PTSD.” (Id. at p. 6.) As such, Section 2032.340 was intended to limit the time allowed for mental examination to “help children who have already gone through the trauma of sexual abuse avoid further emotional injury… [and] reduce the chances that the child will go through any additional, unnecessary emotional and psychological distress.” (Id. at p. 4-5.) Specifically, the Legislature enacted a three-hour limit based on its recognition of the “general consensus that three hours is a sufficient amount of time to conduct the examination.” (Def. RJN, Exh. 2 (Sen. Jud. Comm., Analysis of Sen. Bill No. 755 (2017-2018 Reg. Sess.) June 14, 2017.) It also stated that, though this time limit could be extended upon a showing of good cause, “presumably, the extension would require a stronger showing of good cause [than that made upon request for a mental examination in the first instance]…demonstrat[ing] additional facts (beyond the facts originally presented to obtain the initial examination) or sufficiently new facts as to why three hours is not enough or why additional time is needed.” (Ibid., emphasis in original.)

Here, Defendant does not adequately demonstrate that good cause exists for a 14-hour exam of Plaintiff.

Defendant first asserts good cause exists because the circumstances of Plaintiff’s case are not of the type meant to be redressed by Section 2032.340, as reflected by the legislative history, because she was victimized by two other children and not an adult, has never been diagnosed with PTSD, has not been required to repeat the traumatizing events because her medical records do not indicate her therapists discussed the events at the school with her, and the recordings of the statements she made to the police were inadvertently destroyed without production to the parties. It does not, however, explain why any of these facts leads to a conclusion that a longer examination of Plaintiff is warranted.

Defendant additionally argues that good cause exists for the length of the exam because both the psychological testing by Dr. Hall and the psychiatric interview by Dr. Kuo are needed as the “utilization of several tests and methods is the most accurate and widely accepted approach to arriving at reliable and valid inferences from test data regarding diagnosis, functional impairment and subjective distress.” (Mem. of Pts. and Auth. at p. 8:14-17.) Given that Plaintiff is claiming millions of dollars in damages and there are issues related to causation of her emotional injuries given the complex circumstances of Plaintiff’s home situation, Defendant asserts it is entitled to the requested IME because it claims there is “little to no evidence that the incidents at issue caused her any harm.” (Id. at p. 8:8-9.) With respect to the psychological testing by Dr. Hall, Defendant also maintains that this portion of the exam has no possibility of re-traumatizing Plaintiff because it will consist of standardized psychological tests and Plaintiff’s father has obtained similar testing for her. The Court is not entirely persuaded by Defendant’s contention.

Though the Court agrees that multiple forms of testing (i.e. psychological testing and a psychiatric interview) may yield a more accurate result relative to issues regarding the impact of the events at the school upon Plaintiff’s mental and emotional state, it does not believe the length of the examination sought is warranted. In particular, the request by Dr. Hall to conduct an exam consisting of a battery of psychological tests that may last nearly 11 hours is excessive and seems the very type of “unnecessarily long and abusive psychological exam[]” considered by the Legislature to constitute an abuse of mental examinations as a discovery tool. (See Def. RJN, Exh. 1 at p. 5.) Though Defendant claims such testing is necessary, in part, because Plaintiff claims she suffered academic challenges as a result of the events at the school, seven hours of testing by Dr. Hall to assess the strength of an allegation that forms only a small part of the injuries alleged is not justified. As such, the Court finds that good cause does not exist for the time requested for the psychological examination.

With that said, the Court acknowledges that the unique circumstances of Plaintiff’s home situation around and after the time the abuse occurred results in more complexity in determining the issue of what emotional injuries were caused by the events at the school as opposed to other causes. Thus, the Court finds that, under the circumstances, good cause exists for an IME totaling five hours.

Finally, the only apparent point of contention regarding the conduct of the psychiatric examination relates to Dr. Kuo’s inquiry into Plaintiff’s complete personal history, including family and trauma histories, social and environmental factors, school history, legal history, as well as medical and psychiatric histories. Plaintiff contends that such history-taking is not allowed as similar information was produced in other discovery responses she served on Defendant, citing Golfland Entm’t Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739 in support. This argument is not well-taken. Golfland is distinguishable in that the examinee had previously undergone two examinations. (Golfland, supra, 108 Cal.App.4th at 744.) The court stated that the trial court’s attempt to limit the examination in a way that would minimize unnecessary duplication was valid. (Id. at 745-46.) The court did not hold that no history-taking of an examinee may occur when previous discovery responses contain information to be inquired about. Thus, Golfland does not support the conclusion that no history-taking of Plaintiff can be allowed where there is no indication she has previously been examined or deposed. The Court therefore rejects Plaintiff’s proposition.

In sum, the Court authorizes a two-part IME lasting no more than five hours including breaks. The psychiatric interview by Dr. Kuo may be three hours. Dr. Kuo will be permitted to inquire about Plaintiff’s personal history, including family and trauma histories, social and environmental factors, school history, legal history, and medical and psychiatric histories. Such interview must be conducted in a manner of utmost sensitivity so as to minimize any emotional discomfort to Plaintiff and avoid re-traumatizing her. Defendant is also entitled to two hours for Dr. Hall to conduct any psychological testing necessary to achieve a more accurate assessment of the impact the events at the school had upon Plaintiff’s emotional and mental state. During these two hours, Dr. Hall may conduct any of the following tests: Personality Inventory for Youth, Personality Inventory for Children, Rorschach Inkblot Test, Thematic Apperception Test, and the Roberts Apperception Test, Wechsler Individual Achievement Test, Third Edition (WIAT-III), Wechsler Intelligent Scale for Children, Fifth Edition (WISC-V), Delis-Kaplan Executive Function System (D_DEFS), Test of Memory and Learning Second Edition (TOMAL-2), Child and Adolescent Memory Profile (ChAMP), Memory Validity Profile (MVP), and/or Test of Memory Malingering (TOMM).

2. Time and Place

If a party seeks an order permitting an IME at a place that is more than 75 miles from the examinee’s place of residence, such order may only be granted if the court determines that good cause exists for the travel involved and on the condition that the moving party will advance the reasonable travel expenses and costs to the examinee. (Code Civ. Proc., § 2032.310, subd. (e).)

Here, Defendant requests that the IME take place in Northern California at locations that are more than 75 miles from Plaintiff’s residence in San Diego County. It asserts good cause exists for Plaintiff’s travel to Northern California because the events alleged in the Complaint occurred in Santa Clara County, the matter is venued here, Drs. Kuo and Hall maintain their offices in Northern California, it will incur significant expenses in the event it is required to fund its experts’ travel to and accommodations in Southern California, and its experts’ availability will be reduced if they are forced to travel to Southern California for the IME which will be detrimental given that Plaintiff has sought to set this matter for trial on an expedited schedule. It also states that it will pay Plaintiff’s reasonable travel expenses to Northern California.

In opposition, Plaintiff argues that the monetary cost to Defendant of having to pay for its experts’ travel to Southern California does not constitute good cause warranting the scheduling of an IME more than 500 miles from her place of residence. She also asserts that her motion for trial preference does not create good cause as Defendant had 15 months from the inception of this case to move for an IME yet delayed in doing so. Plaintiff’s contentions are well-taken.

Here, Defendant does not establish good cause exists for having Plaintiff – a nine-year-old girl – travel more than 500 miles away from her home in San Diego County for an IME that will likely already subject her to some level of emotional discomfort. The fact Defendant may save some money by having the IME take place in Northern California or be spared scheduling difficulties with its experts is insufficient to demonstrate that Plaintiff should be forced to travel to a location that is more convenient for Defendant. Moreover, the Court finds that the fact Plaintiff moved for trial preference is immaterial. As pointed out by Plaintiff, this case was filed over a year ago and Defendant has had ample time to move for an IME prior to this point.

Thus, the IME shall take place within 75 miles of Plaintiff’s residence in San Diego County at a specific location and time to be agreed upon between the parties.

3. Conditions of the Examination and Other Issues

a. Audio Recording

Defendant proposes an IME in which Dr. Kuo’s psychiatric interview is audio-recorded but Dr. Hall’s psychological testing session is not.

Code of Civil Procedure section 2032.530 provides that “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” (Code Civ. Proc., § 2032.530, subd. (a), emphasis added.) The purpose of this audio-recording provision is “to ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee’s interests are protected (especially since the examinee’s counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court.” (Golfland Entm’t Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 750.)

Here, the parties agree that Dr. Kuo’s interview can be audio-recorded. The sole issue is whether Defendant can have Dr. Hall conduct an examination that is not audio-recorded. Dr. Hall states in her declaration that she does not permit any video or tape recording of her psychological, academic or neurocognitive assessments because the content of standardized psychological tests are trade secrets and protected by copyrights which, if made available to attorneys and the general public, could compromise the integrity of the tests as it could allow parties to be coached before taking such tests. (Hall Decl., ¶¶ 10-15.) Defendant’s position lacks merit.

Code of Civil Procedure section 2032.530 clearly states that an examinee is entitled to record a mental examination by audio technology and, here, Plaintiff requests such a recording. Though Defendant references the purported copyright and trade secret protections of the standardized psychological tests as a reason why Dr. Hall’s testing should not be audio-recorded, it cites no authority in support of its position that the provisions of Section 2032.530 can be circumvented on such a ground. As such, its position is unsubstantiated.

In the event the Court permits Plaintiff to record Dr. Hall’s session, Defendant requests that it order parameters on that recording, including that the audiotape may only be reviewed by a licensed psychologist retained by Plaintiff with training and expertise in psychological assessments and the administration and interpretation of psychological tests; Dr. Hall directly deliver the tape directly to Plaintiff’s retained psychologist; the psychologist receiving the tape certify the tape is destroyed at the end of the case; no attorneys or parties have access to the tape or any transcription or summary thereof; and restrictions placed on the dissemination of testing information required by the test manufacturers be included. This request is not well-taken as a number of the conditions it seeks to place on any audio-recording of Dr. Hall’s exam fly in the face of the very purpose of the audio-recording statute. Specifically, the restriction that only Plaintiff’s retained psychologist can review any audio recording and no attorneys or parties will have access to the tape would contravene Section 2032.530’s purposes of ensuring Plaintiff’s interests are protected, any evidence of abuse can be presented to the court, and proper context can be provided for Plaintiff’s responses which can be judged for purposes of trial. (See Golfland, supra, 108 Cal.App.4th at 750.)

Finally, Defendant requests that Plaintiff’s father sign any written consents required by its experts for the audio-recording of their exams. In opposition, Plaintiff objects to her father signing the consent form presented by Defendant, which she states is for audio- and video-recording of the IME, which is prohibited under California law. Plaintiff’s argument is well-taken. Code of Civil Procedure section 2032.530 only provides for audio recording of an examination and the Court is not authorizing any video-recording of the IME.

Thus, the Court finds that while Defendant’s request for audio-recording with respect to Dr. Kuo’s interview is appropriate, the request for an order that the examination with Dr. Hall not be audio-recorded is improper. Any portion of the IME may be audio-recorded if Plaintiff so desires. Further, if required by Dr. Kuo and/or Dr. Hall, Plaintiff’s father must provide the necessary written consent though he will not be required to consent to a video-recording of the IME, which is not provided for by Section 2032.530.

b. Examination of Parents

Dr. Kuo indicates that she contemplates interviewing Plaintiff’s parents as part of her interview. Plaintiff asserts any examination of her parents is prohibited by California law. This contention is well-taken.

Code of Civil Procedure section 2030.020 provides in relevant part that a mental examination may only be taken of a party to an action, an agent of the party, or a natural person in the custody or under the legal control of a party. Courts have held 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.” (Roe v. Superior Court (2015) 243 Cal.App.4th 138, 145; see also Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 334-335.)

Here, Plaintiff’s parents are neither parties to the action, agents of Plaintiff, or persons subject to her custody or legal control. As such, a collateral interview of her parents is not permitted under Section 2030.020.

Thus, to the extent Defendant is seeking a mental examination of Plaintiff’s parents within the IME, such examination will not be authorized. With that said, Plaintiff’s parents are free to independently consent to an interview.

c. Production of Results of Psychological Tests to Plaintiff

In her opposition, Plaintiff seeks that the results of any psychological testing conducted during the IME be provided to her.

Code of Civil Procedure section 2032.610 provides in relevant part that a party who has undergone a mental examination has the option of making a written demand for a “copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.” (Code Civ. Proc., § 2032.610, subd. (a)(1).) If such a demand is made and rebuffed, that party may move to compel delivery of the report under Code of Civil Procedure section 2032.620. These statutes do not contemplate that a party may preemptively seek a court order compelling the production of test results.

Thus, the request that Defendant be compelled to produce the results of any psychological testing performed during the IME is premature.

4. Conclusion

Accordingly, Defendant’s motion is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as follows:

(1) Plaintiff shall submit to a psychiatric examination to be conducted by Dr. Kuo. The examination will last no more than three hours, including breaks, and may include inquiry into Plaintiff’s personal history, including family and trauma histories, social and environmental factors, school history, legal history, and medical and psychiatric histories. The examination must be conducted in a manner of utmost sensitivity to minimize any emotional discomfort to Plaintiff and avoid re-traumatizing her. The examination will take place at a location no further than 75 miles from Plaintiff’s place of residence at a time and place to be agreed upon between the parties.

(2) Plaintiff shall submit to a psychological examination to be conducted by Dr. Hall. The examination will last no more than two hours and may include any psychological testing Dr. Hall determines is necessary to achieve a more accurate assessment of the impact the events at the school had upon Plaintiff’s emotional and mental state. Only the following tests will be permitted: Personality Inventory for Youth, Personality Inventory for Children, Rorschach Inkblot Test, Thematic Apperception Test, and the Roberts Apperception Test, Wechsler Individual Achievement Test, Third Edition (WIAT-III), Wechsler Intelligent Scale for Children, Fifth Edition (WISC-V), Delis-Kaplan Executive Function System (D_DEFS), Test of Memory and Learning Second Edition (TOMAL-2), Child and Adolescent Memory Profile (ChAMP), Memory Validity Profile (MVP), and/or Test of Memory Malingering (TOMM). The examination will take place at a location no further than 75 miles from Plaintiff’s place of residence at a time and place to be agreed upon between the parties.

(3) Each examination shall be audio-taped by Dr. Kuo and Dr. Hall in its entirety if Plaintiff so desires.

(4) The examinations shall take place within 45 days of the Court’s order, unless otherwise agreed to by the parties.

The motion is DENIED in all other respects.