2016-00189272-CU-PA

Cherilyn Lanni vs. Ca Montessori Project

Nature of Proceeding: Motion to Compel Compliance with Prior Discovery Order

Filed By: Ullrich, Gabriel

Defendant California Montessori Project’s (“Defendant”) Motion for Monetary Sanctions and for Order Compelling Compliance is ruled on as follows.

This is a personal injury action arising from a 2015 motor vehicle accident. Plaintiff Cherilyn Lanni (“Plaintiff”) alleges that as a result of the car accident, she sustained physical and psychological injuries.

On August 7, 2018, the Court granted Defendant’s Motion to Compel a psychiatric examination of Plaintiff. Defendant’s Notice of Motion stated that Defendant was moving under section 2032.010(a) “to have the Plaintiff evaluated by psychiatrist Dr. John Greene.” (Kilduff Decl. Ex. 4) Citing to CCP § 2032.310(b), the Notice further identified the following specific conditions for the examination:

• Date/Time: August 3, 2018, 10:00 a.m.

• Place: 100 Howe Ave., Ste. 110-South, Sacramento, CA

• Manner/Purpose: For the purpose of determining the nature and extent of the injuries and disabilities arising out of the underlying motor vehicle accident.

• Conditions: Per Code.

• Scope: A psychiatric examination related to the instant lawsuit.

• Nature of Exam: Standard psychiatric interview including a history of injury with past and present complaints and treatment, psychiatric history, educational and vocational history, medical, and legal history. The doctor will also administer the following tests: MCMI-IV, The Rotter Incomplete Sentences Blank, and an MMPI-2, in addition to the full psychiatric interview. The estimated duration is 4-6 hours.

The Court’s August 7 Order states that Defendant’s motion to compel is “granted.” (Kilduff Decl. Ex. 5.) However, although the Court granted the specific relief requested by Defendant, it did limit the examination to “no longer than four hours.” (Id.)

Defendant asserts that on August 13, 2018, it sent a Third Amended Request for Mental Examination with Dr. Greene for September 17, 2018 under the terms set forth in the Notice of Motion and Court Order. (Kilduff Decl. Ex. 6.) Plaintiff’s counsel objected, stating Plaintiff would not agree to the psychiatric tests MCMI IV and Rotter Incomplete Sentences Blank (“RISB”), and that the examination could not exceed 90 minutes. (Kilduff Decl. ¶10.) Defendant then served a Fourth Amended Request for Mental Examination. (Kilduff Decl. Ex. 7.) Defendant asserts that Plaintiff still will not submit to the examination.

Defendant now moves pursuant to CCP § 2023.010, arguing that Plaintiff has misused the discovery process by disobeying the order compelling her mental examination. Defendant also moves pursuant to CCP § 2032.410, which states that the Court may impose sanctions for failure to comply with a requirement to submit to a physical or mental examination. Defendant seeks Plaintiff’s compliance with the August 7, 2018 discovery order as well as monetary sanctions pursuant to both statutes. Specifically, Defendant argues that Plaintiff should be compelled to appear for a psychiatric examination with Dr. Greene for no longer than four hours, where Dr. Greene will administer the MCMI IV and RISB.

In opposition, Plaintiff argues that the Court’s order did not comply with the requirements of CCP § 2032.320 and Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249. Section 2032.320(d) states that “[a]n 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.” (CCP § 2032.320(d).) Plaintiff contends that because the Court’s August 7 Order does not spell out these specifics in the order itself, the order is defective, and the conditions for the psychiatric examination are unclear and up for negotiation. Plaintiff further contends that she made a good faith effort to meet and confer concerning the specific tests that Defendant’s examiner may employ, pursuant to Carpenter. Plaintiff argues that the RISB and MCMI IV tests are unnecessarily duplicative and tests that Dr. Greene is not qualified to administer or interpret. Finally, Plaintiff argues that sanctions are not appropriate, as she has made a good faith effort to meet and confer in compliance with Carpenter.

In Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, the parties agreed that plaintiff would submit to a mental examination, but they disputed which specific diagnostic tests and procedures would be used. The trial court ordered that the plaintiff must submit to a mental examination that would include “standardized written psychological tests” to “test emotional and cognitive functioning.” (Carpenter, 141 Cal.App.4th at 269.) On appeal, the Court of Appeal vacated the trial court’s order because it did not comply with the requirements of section 2032.320, which states that an order compelling a mental examination must, in relevant part, “specify the . . . diagnostic tests and procedures . . .”(CCP § 2032.320(d).) As the trial court’s order in Carpenter did not list the specific tests to be used, the Court of Appeal concluded it was not in compliance with the statute and thus defective. The parties were ordered to meet and confer regarding the specific tests, with any unresolved issues to be addressed by the trial court.

In reaching its ruling, the Court of Appeal distinguished the facts at hand from Bittle v. Superior Court (1976) 55 Cal. App. 3d 489. In Bittle, the court found that an order compelling a plaintiff’s physical examination was not defective per se, where the scope of the examination was clear from the order and notice of motion, taken together.

Although Carpenter distinguished Bittle because it addressed physical, rather than mental examinations, the Carpenter Court stated, “ . . . to the extent Bittle stands for the proposition that the specificity requirement can be satisfied by details set forth in the motion papers, [defendant’s] motion papers did not name the specific diagnostic tests and procedures to be employed.” (Carpenter, 141 Cal.App.4th at 270) (emphasis in original.)

Here, that is not the case. While the Court’s August 7 Order does not expressly list the specific details set forth in section 2032.320(d), it grants the specific relief requested in Defendant’s motion (though limiting the exam to four hours). Defendant’s Notice of Motion and Motion, as set forth above, state all of the specifics required by section 2032.320. Accordingly, the Court’s order clearly puts Plaintiff on notice of the specific time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. Of course, the date of the examination must now be moved in light of the parties’ disputes, which have caused delay.

Thus, the Court orders Plaintiff to comply with its August 7 ruling, which grants Defendant’s request for Plaintiff’s psychiatric examination by Dr. Greene with the following conditions (though the Court will now provide an updated date, consistent with Defendant’s Fourth Amended Notice):

• Date/Time: October 5, 2018, 10:00 a.m.

• Place: 100 Howe Ave., Ste. 110-South, Sacramento, CA

• Manner/Purpose: For the purpose of determining the nature and extent of the injuries and disabilities arising out of the underlying motor vehicle accident.

• Conditions: Per Code.

• Scope: A psychiatric examination related to the instant lawsuit.

• Nature of Exam: Standard psychiatric interview including a history of injury with past and present complaints and treatment, psychiatric history, educational and vocational history, medical, and legal history. The doctor will also administer the following tests: MCMI-IV, The Rotter Incomplete Sentences Blank, and an MMPI-2, in addition to the full psychiatric interview. The exam shall be no longer than four hours.

Although Plaintiff now argues that the MCMI-IV and RISB tests are unnecessary or duplicative, and that the Court should reconsider or amend its August 7 ruling, the Court considered Plaintiff’s arguments regarding the specific tests at the hearing on the original motion to compel. (Fischer Decl.; Opp. at p. 3:11-15.) Moreover, Plaintiff was on notice that Defendant sought those specific tests through its Request for Mental Examination and subsequent motion to compel. The Court ultimately granted Defendant’s motion, and in doing so, rejected Plaintiff’s arguments that those specific tests should not be administered.

Despite the foregoing, Defendant’s request for sanctions is nonetheless denied. Plaintiff argues that she made an effort to meet and confer pursuant to Carpenter, which states that, where the trial court’s order lacks the specifics required by section 2032.320, the parties may meet and confer concerning the specific tests, with any remaining disputes to be resolved by the trial court. (Carpenter, 141 Cal.App.4th at 270.) While the Court ultimately finds that the specifics of section 2032.320 may be discerned in the August 7 Order, the Court is aware that the format of the August 7 Order may have opened the door for Plaintiff to believe she could further meet and confer with Defendant regarding the conditions of the exam. Accordingly, the Court does not find that sanctions are warranted.

Based on the foregoing, the motion to compel compliance is granted, and the motion for sanctions is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.