Case Name: Tam Dinh, et al. v. Preston Pipelines, Inc., et al.

Case No.: 18CV332002

Defendants Preston Pipelines, Inc. and Joel Tomas Quezada Martinez’s Motion to Compel Mental Health Examination of Plaintiff Tam Dinh Pursuant to Code of Civil Procedure Section 2032.310 and Request for Sanctions (CCP §§2023.010, 2023.020, and 2023.030)

Factual and Procedural Background

On or about August 15, 2016, plaintiff Tam Dinh (“Dinh”) was lawfully travelling eastbound on Calaveras Boulevard approaching the fork where the road divides into Serra Way. (Complaint, ¶9.) Defendant Joel Tomas Quezada Martinez (“Martinez”), in the course of employment with defendant Preston Pipelines, Inc. (“Preston”), was driving a large dump truck in one of the lanes proceeding onto eastbound Calaveras Boulevard. (Complaint, ¶12.)

Plaintiff Dinh was preparing to proceed to Serra Way at the fork when all of a sudden and without warning, defendant Martinez attempted to change lanes into Serra Way at the last second and slammed his dump truck into the driver’s side of plaintiff Dinh’s vehicle. (Complaint, ¶13.) The dump truck driven by defendant Martinez was maintained, entrusted, and controlled by defendant Preston and was engaged in the business of pipeline contracting for a profit. (Complaint, ¶16.) At all relevant times, defendant Preston hired defendant Martinez to be a truck driver delivering pipelines and other materials on behalf of defendant Preston. (Complaint, ¶22.)

As a direct and proximate result of the actions or omissions of defendants, plaintiff Dinh suffered a traumatic brain injury and received severe injuries to her body. (Complaint, ¶¶17 – 19.) Plaintiff Cuong Le (“Le”) is the lawfully wedded husband of plaintiff Dinh. (Complaint, ¶20.)

On July 23, 2018, plaintiffs Dinh and Le filed a complaint against defendants Preston and Martinez asserting causes of action for:

(1) Negligence – Motor Vehicle [plaintiff Dinh against defendants Preston and Martinez]
(2) General Negligence [plaintiff Dinh against defendants Preston and Martinez]
(3) Negligent Hiring, Supervision and Retention [plaintiff Dinh against defendant Preston]
(4) Loss of Consortium [plaintiff Le against all defendants]
(5) Negligent Entrustment [plaintiff Dinh against defendants Preston and Martinez]

On October 23, 2018, defendants Preston and Martinez filed an answer to plaintiffs’ complaint.

Discovery Dispute

On March 21, 2019, prior to a mediation status conference held on April 11, 2019, defendants’ counsel met and conferred with plaintiffs’ former counsel and defendants’ counsel expressed the need to have both a physical examination and mental health evaluation of plaintiff Dinh completed prior to mediation. Plaintiffs’ counsel stipulated to producing plaintiff Dinh for the mental health examination without the need of a court order.

A physical examination by board certified neurologist Peter Cassini, M.D. was noticed for May 30, 2019. Plaintiff Dinh appeared for the examination by Dr. Cassini as agreed.

A mental health examination to be conducted by psychiatrist Steven Raffle, M.D. with the assistance of neurophysiologist Kyle Boone, Ph.D., who would administer standardized psychological tests, was noticed for July 23, 2019.

On or about May 13, 2019, defendants’ counsel received notice that Larry Phan (“Phan”) substituted in as plaintiffs’ counsel. Thereafter, plaintiffs’ counsel Phan served an objection to the demand for mental health examination by doctors Raffle and Boone. Among other things, plaintiffs’ counsel objected to participation by both Drs. Raffle and Boone and the absence of a specific list of the diagnostic tests and procedures to be used. Defendants’ counsel

On May 24, 2019, defendants’ counsel served an Amended Demand for Mental Health Examination, Evaluation and Testing (“Amended Demand”) of plaintiff Dinh to occur on July 23 – 24, 2019. The Amended Demand included a full description of what the examination and evaluation would consist of and a list of the standardized tests and exams that would be administered by Dr. Boone.

On June 7, 2019, plaintiff Dinh served an objection to the Amended Demand in which they continued to object to the participation of both Dr. Raffle and Dr. Boone in the evaluation and indicating plaintiff Dinh would be willing to submit to a mental health examination performed by one of the two. Plaintiff also objected to the performance of any diagnostic studies.

On July 11, 2019, defendants’ counsel met and conferred by telephone with plaintiffs’ counsel explaining the necessity for Dr. Boone’s participation. Plaintiffs’ counsel indicated he did not want to have Dr. Boone administer the standardized psychological tests because the testing would invalidate the testing he had set for August by a neuropsychologist he had retained. Plaintiffs’ counsel offered to provide the test result of his consultant’s tests to Dr. Boone. Defendants’ counsel agreed to not have Dr. Boone participate and administer tests and to have the evaluation conducted solely by Dr. Raffle. Based on this agreement, on July 11, 2019, defendants’ counsel prepared and served a Second Amended Demand for Mental Health Examination, Evaluation and Testing of plaintiff Dinh to occur on July 23 – 24, 2019 which reflected the agreement that the evaluation would be conducted solely by Dr. Raffle and deleted the list of standardized tests to be administered by Dr. Boone and listed four standardized tests Dr. Raffle would administer.

On July 18, 2019, plaintiff Dinh served a First Amended Response to Demand for Defense Mental Health Examination, Evaluation and Testing stating she would appear on July 23, 2019 but setting forth a number of conditions including a request that the interview and discussions between Dr. Raffle and plaintiff Dinh be audiotaped. On July 22, 2019, plaintiffs’ counsel’s office confirmed by email that plaintiff Dinh would appear for examination by Dr. Raffle.

On July 23, 2019, plaintiff Dinh, plaintiff Le, and a representative from plaintiffs’ counsel’s office (“Fiona”) appeared for the examination by Dr. Raffle at the time and place noticed. Fiona advised Dr. Raffle hat the examination could not proceed unless she was permitted to be present during the examination. Dr. Raffle advised Fiona that there was no objection to audio recording but Fiona would not be permitted to be present during the examination. Defendants’ counsel spoke to Fiona by telephone and advised her that audio recording was permitted but not Fiona’s attendance during the evaluation. Plaintiff Dinh, plaintiff Le, and Fiona left without the examination going forward.

On July 31, 2019, defendants’ counsel met and conferred with plaintiffs’ counsel by telephone followed by a letter dated August 5, 2019. Defendants’ counsel requested plaintiff Dinh attend a mental health evaluation and requested $6,675 reimbursement from plaintiffs’ counsel for charges incurred for Dr. Raffle and room rental for the evaluation to take place. Plaintiffs’ counsel did not respond.

On August 29, 2019, defendants’ counsel filed the motion now before the court, a motion to compel plaintiff Dinh’s attendance at a mental health examination and request for sanctions.

V. Defendants’ motion to compel mental health examination of plaintiff Tam Dinh is GRANTED.

A. Legal standard.

(a) If any party desires to obtain discovery … by a mental examination, the party shall obtain leave of court.
(b) 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(Code Civ. Proc., §2032.310.)

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Code Civ. Proc., §2032.320, subd. (a).)

[A] showing of “good cause” [requires] the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. [Footnote.] The requirement of a court order following a showing of good cause is doubtless designed to protect an examinee’s privacy interest by preventing an examination from becoming an annoying fishing expedition. 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. (Schlagenhauf v. Holder, supra 379 U.S. at pp. 116-122 [13 L.Ed.2d at pp. 162-166, 85 S.Ct. 234].)

(Vinson v. Superior Court (1987) 43 Cal.3d 833, 840 (Vinson).)

B. Merits.

Here, defendants contend good cause exists to compel a mental examination because plaintiff Dinh claims to have sustained a traumatic brain injury which she claims to have resulted in significant, permanent cognitive and emotional deficits and problems. In short, plaintiff Dinh has put her mental health at issue.

Plaintiff Dinh declined to participate in an evaluation on July 23, 2019 because Dr. Raffle would not permit Fiona from being physically present during plaintiff Dinh’s examination. While plaintiff’s counsel or plaintiffs’ counsel’s representative may be present during a physical examination, the Code of Civil Procedure does not allow their presence for a mental examination. “Case law recognizes the special need for rapport between examiner and examinee during a mental examination. Thus, absent stipulation to the contrary, neither counsel nor court reporters may attend. Their presence might hinder the examiner’s ability to establish rapport with the examinee and thereby impair the effectiveness of the examination.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶8:1593, pp. 8I-24 to 8I-25 citing Edwards v. Superior Court (1976) 16 Cal.3d 905, 910, et al.) “[T]he court has discretion to allow counsel to attend when needed (e.g., indications of likely offensive tactics).” (Id. citing Vinson, supra, 43 Cal.3d at pp. 845 – 846.) “The Discovery Act specifically authorizes recording mental exams. Both examiner and examinee have the right to record the entire examination by audio (but not video) technology.” (Id. at ¶8:1595, p. 8I-25 citing Code Civ. Proc., §2032.530, subd. (a)—“The examiner and examinee shall have the right to record a mental examination by audio technology.”)

In opposition, plaintiff Dinh contends she conditioned her appearance at the mental examination, in part, on the presence of a representative who would audio record the examination. In her July 18, 2019 First Amended Response to Demand for Defense Mental Health Examination, Evaluation and Testing, plaintiff Dinh stated, in relevant part, “Pursuant to CCP section 2032.530, the subject mental examination shall be recorded by audio technology by an employee of Plaintiffs’ counsel.”

Plaintiff Dinh further contends her objection was not limited to the presence of a representative from plaintiffs’ counsel’s office, but also that she did not agree to undergo any testing. Indeed, in her July 18, 2019 First Amended Response to Demand for Defense Mental Health Examination, Evaluation and Testing, plaintiff Dinh stated, in relevant part, “This evaluation will consist of an interview only, standard with a psychiatric evaluation. Plaintiff will not agree to undergo any other testing. Plaintiff reserves the right to object to individual testing after consultation with his [sic] neuropsychologist.” (Emphasis added.)

Plaintiff Dinh contends she has already undergone multiple neurological and neuropsychological testing by Lauren Lee Drag, Ph.D. on January 23, 2017 at Stanford Medical Center and by Dr. Randall Epperson on August 6, 2019. Dr. Epperson performed the same tests that defendants seek to have Dr. Raffle perform. Dr. Epperson is going to provide the results and data from his tests of plaintiff Dinh to Dr. Raffle as well as to defendants’ neuropsychologist Dr. Kyle Boone. In addition, plaintiff Dinh underwent a neurological examination performed by defendants’ expert neurologist Peter Cassini, M.D. on May 30, 2019.

It is plaintiff Dinh’s contention that the parties had reached an agreement with regard to the conditions stated in plaintiff Dinh’s July 18, 2019 First Amended Response to Demand for Defense Mental Health Examination, Evaluation and Testing. It is apparent to this court that the parties did not, in fact, reach any agreement on these two points.

Based on the authorities cited above, plaintiff Dinh is entitled to record the mental examination by audio technology, but the court does not interpret Code of Civil Procedure section 2032.530, subdivision (a) to allow plaintiffs’ counsel’s representative to be present to do so. Plaintiffs’ counsel’s representative may set up the audio technology to record the examination, but is not allowed to be present during the examination.

With regard to additional testing, the court finds no good cause has been demonstrated for the additional testing identified in defendants’ Second Amended Demand for Mental Health Examination, Evaluation and Testing of plaintiff Dinh in light of plaintiff Dinh’s representation that identical testing has been performed by Dr. Epperson, the results of which have been or will be shared with defendants, Dr. Raffle, and Dr. Boone.

Accordingly, defendants’ motion to compel the mental health examination of plaintiff Dinh is GRANTED. Defendants shall prepare an order in compliance with Code of Civil Procedure section 2032.320, subdivision (d). With regard to the “manner, diagnostic tests and procedures, conditions, scope, and nature of the examination,” defendants may incorporate the language proposed at page 8, line 20 to page 9, line 1 ending with the word “evaluation.” Dr. Raffle is not allowed to conduct any further testing. Plaintiff Dinh shall be allowed to record the mental examination by audio technology, but plaintiffs’ counsel (or representative) is not allowed to be present during the examination.

C. Sanctions.

On the issue of sanctions, defendants request the court impose monetary sanctions against plaintiff pursuant to Code of Civil Procedure sections 2023.010 and 2023.030. Sanctions are available under section 2023.030 only “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” However, defendants do not cite to a particular chapter or provision which would authorize sanctions.

Section 2023.010 identifies examples of misuse of discovery, but without an accompanying statute authorizing the issuance of sanctions, it does not create independent authority for the issuance of sanctions.

Defendants also base their request for sanctions on Code of Civil Procedure section 2023.020 which states, “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” Dr. Raffle’s cancellation fees and the cost to rent a room for the examination are not the result of a failure to confer, but rather miscommunication and/or a misunderstanding with regard to what the parties had agreed to. Subsequent to July 23, 2019 and prior to the filing of this motion, the parties did meet and confer on July 31, 2019. Although the court would have preferred more effort at informal resolution, the court does not find a failure to confer.

Accordingly, defendants’ request for sanctions is DENIE