Case Number: 18STCV02222 Hearing Date: March 09, 2020 Dept: 32

shafiqul islam,

Plaintiff,

v.

STATE OF CALIFORNIA, et al.

Defendants.

Case No.: 18STCV02222

Hearing Date: March 9, 2020

[TENTATIVE] order RE:

motion to compel plaintiff’s mental examination

BACKGROUND

Plaintiff Shafiqul Islam (“Plaintiff”) commenced this action against Defendant State of California (“State”) on October 24, 2018. The Complaint asserts seven FEHA-based causes of action: (1) discrimination (race, religion, national origin/ancestry), (2) discrimination (disability), (3) failure to reasonably accommodate, (4) failure to engage in an interactive process, (5) retaliation, (6) harassment, and (7) failure to prevent discrimination, retaliation, and harassment. The Complaint alleges in pertinent part as follows.

Plaintiff is a person of Bangladeshi origin, a Muslim, and disabled person within the meaning of FEHA. Since 1998, Plaintiff has been employed by the California Department of Transportation, an agency of Defendant State, as a transportation engineer. During the course of his employment with the State, Plaintiff was subjected to discrimination, retaliation, and harassment by his supervisors.

DISCUSSION

Defendant State moves to compel Plaintiff to submit to a mental examination.

If a party desires to obtain discovery by a mental examination, the party shall obtain leave of court. (CCP § 2032.310(a).) To obtain leave of court, the moving party must show that (1) the mental condition of the examinee is in controversy (CCP § 2032.020(a)) and (2) there is good cause for the mental examination (CCP § 2032.320(a)).

A. Mental Condition in Controversy

“[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

The State cites to the Complaint and Plaintiff’s deposition testimony to show that Plaintiff’s mental state is in controversy. In the Complaint, Plaintiff alleges that the hostile work environment created by his supervisor exacerbated “his anxiety and depression, resulting in undue stress, shortness of breath, and sleep issues, among other psychological conditions.” (Compl. ¶ 18.) At deposition, Plaintiff testified that he is undergoing therapy with a psychologist as a result of this stress caused by his supervisor. (Pl. Depo. pp. 42-48.) Plaintiff testified that his emotional distress and anxiety is ongoing. (Pl. Depo. pp. 506, 508.) And Plaintiff testified that his supervisor’s actions caused him to take eight months off from work. (Pl. Depo. p. 514.)

The State’s evidence is well-taken. The Complaint’s allegations of emotional distress and Plaintiff’s deposition testimony of the same have placed Plaintiff’s mental condition in controversy in this action.

Relying on Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, Plaintiff responds that his mental condition is not in controversy because his alleged emotional distress is not presently severe. The Court disagrees. First, Doyle simply emphasized that the claimed emotional distress must be “ongoing” in order to warrant a mental examination. (Doyle, supra, 50 Cal.App.4th at 1887 (“The mental condition of a person who is suffering ongoing mental distress is clearly ‘in controversy’ in an action seeking damages for that ongoing mental distress.”).) At deposition Plaintiff testified that his emotional distress is ongoing. (Pl. Depo. pp. 506, 508.) Second, even assuming that a severity requirement was prerequisite, this severity requirement would be met because Plaintiff testified that his present anxiety was an eight on a scale of one to ten. (Pl. Depo. p. 508.)

B. Good Cause

Good cause generally requires a showing of (1) relevancy to the subject matter and (2) specific facts justifying discovery. (Vinson, supra, 43 Cal.3d at 840; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:1557.)

A mental examination is relevant to this action because Plaintiff is alleging emotional distress and pursuing emotional distress damages. Specific facts justifying this mental examination include Plaintiff’s deposition testimony that he suffers and continues to suffer emotional distress as a result of the hostile work environment. Hence, good cause supports the State’s demand to examine Plaintiff’s medical condition.

Plaintiff argues that good cause does not support all aspects of this mental examination because the mental examination will probe into matters unrelated to Plaintiff’s alleged emotional distress. This argument is unpersuasive because Plaintiff has presented no evidence showing that this mental examination would delve into inappropriate or irrelevant matters, such as his sexual history and practices. The tests proposed to be administered (recited post) appear reasonably calculated toward assessing the emotional distress claim brought by Plaintiff.

C. Conditions of Examination

A motion to compel 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 who will perform the examination. (CCP § 2032.310(b).)

The State proposes that the medical examination be conducted by Fernando Gonzalez (“Gonzalez”), a licensed psychologist. (Schele Decl. Ex. C.) The State proposes that the examination take place on March 2020 at 9:00 a.m. at 107 S. Fair Oak Ave., Ste 214, Pasadena, CA 91105. (Ibid.) The State notes that the examination will take approximately six to seven hours and will consist of an interview and the administration of the following tests: the MMPI-II or MMPI-IIRF, Beck Depression Inventory-II and Beck Anxiety Inventory, HIT-6, Trauma Symptom Inventory II, Epsworth Sleepiness Study, and Mini Mental State Exam. (Ibid.)

Plaintiff argues that the exams proposed to be administered are irrelevant to his claim for emotional distress damages. The Court disagrees. In the Court’s experience, the eight tests proposed to be administered are all recognized tests for assessing a claim for emotional distress damages where anxiety, depression, stress, and sleeplessness have been alleged. If Gonzalez determines, in his discretion, that one or more tests are unnecessary or improper, Gonzalez is instructed to not implement those tests.

The Court finds the conditions of this proposed mental examination to be acceptable.

D. Safeguards

Plaintiff states that he should be entitled to record the entirety of the examination and testing pursuant to CCP section 2032.530(a). The Court agrees. Section 2032.530(a) provides in pertinent part that “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” Plaintiff may therefore record the mental examination.

Plaintiff also requests that questions at the mental examination be limited to the relevant time frame of the Complaint. This request is denied. In the FAC, Plaintiff alleges that the State’s misconduct “exacerbat[ed] his anxiety and depression,” indicating that Plaintiff had preexisting anxiety and depression. (Compl. ¶ 18.) Delving into these matters during the examination is appropriate. Further, general background information is presumably necessary for a complete and comprehensive mental examination.

CONCLUSION

The State’s motion to compel Plaintiff to submit to a mental examination is GRANTED. The conditions of the mental examination are those articulated in the State’s motion and in this ruling.