Case Number: EC057245    Hearing Date: July 18, 2014    Dept: NCB

9. EC057245
GIANNA BRILLIANT v STEPHEN S. MARMER M.D. et al
Motion to Compel Deposition or Mental Examination

This case arises from the Plaintiff’s claim that the Defendants caused the wrongful death of her daughter, Amy Breliant, when they provided her with medical treatment below the standard of care. Trial is set for September 2, 2014.

This hearing concerns the Plaintiff’s motion for an order compelling the Defendant, Gary Chase, to appear for a deposition or, in the alternative, an order compelling Defendant, Gary Chase, to submit to a mental examination.

This dispute arises because the Plaintiff claims that the Defendant, Gary Chase, is not actually impaired. Dr. Chase has previously provided evidence in the form of a declaration from Andrew Woo, M.D., who is Dr. Chase’s treating physician. Dr. Woo provided an opinion that Dr. Chase suffers from Parkinson’s Disease and an associated cognitive decline. In addition, Dr. Woo provided opinions that Dr. Chase has functional problems in short and long term memory and is no longer reliable in sorting fact from fiction or confabulation. Further, Dr. Woo provided an opinion that Dr. Chase is not capable of providing meaningful and reliable information, providing testimony under oath, and cannot meaningfully assist his counsel in his defense. Dr. Woo adds that Dr. Chase has retired from his practice.

On May 29, 2013, the Court granted the Defendant’s request to appoint his wife, Phyllis Chase, as his guardian ad litem based on the evidence in the declaration of Dr. Woo. Further, the Court held a hearing on July 15, 2013 regarding the evidence submitted regarding Dr. Chase. These were done solely in connection with Dr. Chase’s application to have his wife appointed as guardian ad litem.

The Plaintiff filed the pending motion on June 23, 2014, the first time she has sought an order for mental examination, on the ground that she has evidence that indicates that Dr. Chase is competent to sit for a deposition. The Plaintiff hired private investigators to conduct covert surveillance of Dr. Chase from February 3, 2014 to February 24, 2014. A review of results of this surveillance reveals Dr. Chase speaking to various person, driving a motor vehicle, attending and apparently following the events of a football game, observations of Dr. Church speaking in a fluid and even manner (although the investigator did not hear the conversation but merely concluded it from physical observation outside of hearing distance), drawing and explaining the parts of a human brain while Dr Chase attended a private cognitive therapy session at the adult center, and apparently reading and ordering from a menu in restaurants (see copies of surveillance reports in exhibits 1, 2, and 3 to the declaration of Mark Mermelstein). Plaintiff asserts that these facts in the surveillance reports conflict with Dr. Woo’s opinions that Dr. Chase has functional problems with his memory, cannot sort fact from fiction, cannot provide testimony, and cannot assist his counsel in his defense. As will be addressed infra., the Court is very concerned about the manner in which Plaintiff and her counsel secured some of this information.

In addition to the surveillance, the Plaintiff offers the opinions of H. Ronald Fisk, who states in paragraphs 1 to 4 that he is licensed to practice medicine in the State of California and that he is board certified in neurology and psychiatry. Dr. Fisk states in paragraph 5 that he evaluated eleven videos of Gary Chase and nineteen written surveillance reports of Gary Chase. These videos and reports were not provided to the Court nor, apparently, the Defendant. Dr. Fisk stated in paragraph 6 that he viewed Gary Chase communicating effectively, actively participating and watching his grandson play in a soccer match, actively and purposefully engaging in social conversations, ordering from a menu at a restaurant, and driving a motor vehicle. Dr. Fisk provides an opinion in paragraph 6 that it would be highly unlikely for Gary Chase to be driving if he suffered from significant dementia or any form of significant cognitive decline. Dr. Fisk offers an opinion in paragraph 7 that based on this evidence, Gary Chase is competent to sit for a deposition or to participate in a neuropsychological evaluation to determine the extent of Gary Chase’s cognitive impairment.

The Plaintiff has presented evidence from which it is possible to draw several inferences:

1) Dr. Woo was mistaken when he rendered his opinions about Dr. Chase and Dr. Chase is competent to appear for a deposition or Dr. Woo was not provided with sufficient or correct information about Gary Chase’s competency;
2) the Plaintiff’s private investigator and expert Dr. Fiske are mistaken and inaccurate when they contend that Dr. Chase shows no mental infirmity or they base their conclusions on incomplete information.
It is necessary to make an inquiry to determine which inference is accurate.

The opposition papers raise issues with the Plaintiff’s prior conduct in this litigation, e.g., her attorney’s conduct at prior hearings. All are irrelevant to the pending hearing on whether there is good cause for the deposition or mental examination of Gary Chase.
The opposition also argues that the Plaintiff has abandoned this issue. Although Plaintiff waited until the eve of trial to put a motion for a mental examination on calendar, the pending motion indicates that the Plaintiff has not abandoned the issue of Gary Chase’s competency.
The opposition then argues that this is an improper motion to renew. . It should be noted that the court’s interim order was based solely on whether Dr. Chase’s condition was sufficient to require a guardian ad litem should be appointed. No finding under Evidence Code §701 has been made by this court. No motion for a mental examination has previously been heard by the Court. Accordingly, this is not a motion that must be brought under CCP§1008. In addition, even if its prior order is deemed an Evidence Code 701 finding (despite the Court having specifically advised the parties at the hearings on this matter that it was making no such determination and that its determination was made solely under CCP§373(c)) the Court has the inherent power to reevaluate its interim rulings on its own motion and to enter a new and different order at any time prior to entry of judgment. Darling v. Kritt (1999) 75 Cal. App. 4th 1148, 1157. In light of the conflicting evidence regarding Gary Chase’s competency, there are grounds to pursue a mental evaluation to determine whether Dr. Chase may competently give testimony. The opposition then argues that the Plaintiff’s evidence is inadmissible. Further, the opposition includes the declaration of Phyllis Chase, the wife of Gary Chase. Ms. Chase denies that her husband is mentally fit and denies that he drove a motor vehicle. However, the conflict in evidence merely strengthens the good cause to order Gary Chase to submit to a mental examination to determine whether he is competent to appear for his deposition.

Accordingly, there are grounds for a mental evaluation and a hearing on Dr. Chase’s competency to testify. Although the Plaintiff has provided evidence that demonstrates that there is good cause for a mental examination, the Plaintiff’s motion does not comply with CCP section 2032.310(b) by specifying 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 issue of Gary Chase’s competency, however, should be resolved promptly in light of the September 2, 2014 trial date.

Accordingly, the Court will set an evidentiary hearing regarding Gary Chase’s competency, and order Dr Chase to appear for examination by an expert in advance of the hearing, at a reasonable time, place and duration and under specified conditions to be determined by the Court. The Court will determine at the hearing whether to have Plaintiff’s expert conduct the examination or the Court will appoint a Court’s expert in neurology and psychiatry.
A witness’s competency to testify is determined exclusively by the Court. People v. Lewis (2001) 26 Cal. 4th 334, 360. The Court may question the witnesses, including Dr. Chase, to determine competency. People v. Mincey (1992) 2 Cal. 4th 408, 443. In addition, the witness may present evidence on whether the witness is competent. Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal. App. 4th 1495, 1506-1507 (using expert testimony on issue of witness’ competency). An evidentiary hearing will permit the Court to make a determination regarding Gary Chase’s competency and determine whether Gary Chase should appear for a deposition.

The Surveillance –

Investigators are often used in litigation, especially personal injury litigation. However, such surveillance must not violate a law, regulation or invade any protected right. Surveillance is customarily accomplished in public places. A sub rosa investigation may consist of surveillance and taking photographs of an individual. See e.g., Ryan v. Workmen’s Comp. Bd. (1968) 265 Cal.App.2d 654 (applicant filmed in parking lot); Choyce v. Workmen’s Comp. App. Bd. (1967) 32 Cal.Comp.Cases 315 (applicant filmed while playing basketball); Kemp Bros. Contractors v. Workmen’s Comp. App. Bd. (1967) 32 Cal.Comp.Cases 35 (applicant filmed getting into and out of automobile); Ryland v. Industrial Acc. Com. (1966) 31 Cal.Comp.Cases 54 (applicant filmed walking 14 1/2 blocks on public street without stopping). The reports of the Plaintiff’s investigators that detailed the Defendant’s daily activities are examples of a proper sub rosa investigation.

Private investigators are regulated under the Private Investigators Act, which is enacted at Business and Professions Code sections 7512 to 7573. The Plaintiff’s use of private investigators appears to have violated this statutory scheme in at least two ways. First, section 7539(b) bars a private investigator or employee of the private investigator from entering any private building except premises commonly accessible to the public, without the consent of the owner or of the person in legal possession thereof. The Plaintiff’s private investigators, through false pretext, entered private premises that was used, in part, to provide therapy services.. This appears to violate section 7539(b).
Second, section 7561.4 authorizes a private investigator’s license to be suspended or revoked if the private investigator has committed any act in the course of the private investigator’s business constituting dishonesty or fraud. The means by which the Plaintiff’s private investigators gained access to the Defendant’s therapy session is an act constituting dishonesty and fraud, i.e., the feigning of an injury in order to intrude into a private therapy session.
Moreover, when a private investigators makes an intrusion into the individual’s right of privacy which would be objectionable or offensive to the reasonable person, the conduct constitutes an actionable invasion of privacy. Redner v. report Workers’ Comp. Appeals Bd. (1971) 5 Cal. 3d 83, 94 n13. Here Plaintiff’s counsel used an investigator, by means of lies and falsehoods, to enter into Dr. Chase’s private adult day care and his cognitive therapy sessions, in a private setting, to report Dr. Chase’s conduct and communications to Plaintiff’s counsel. The use of the Plaintiff’s investigator detailing the feigning of an injury in order to gain access to a private therapy session with the Defendant appears to be an intrusion into the Defendant’s right of privacy that is objectionable and offensive to a reasonable person and is an act of dishonesty sufficient for the investigator’s license to be revoked.
Further, case law regarding the use of sub rosa investigations in workers’ compensation cases finds that evidence obtained by fraud and deceit in violation of the rights of the party is not best calculated to ascertain the substantial rights of the parties. Unruh v. Truck Ins. Exch. (1972) 7 Cal. 3d 616, 630. Moreover, the purposes of the law should not be perverted by resort to evidence fraudulently procured. Id.
In Redner v. Workers’ Comp. Appeals Bd. (1971) 5 Cal. 3d 83, California’s Supreme Court considered an insurance carriers use of a sub rosa video that had been obtained after the investigator had induced an individual to ride a horse and then hidden himself in order to take a film of the individual riding the horse. The Supreme Court concluded that it could not sanction the insurance carrier’s deceit and that “the legal process cannot be stultified by crowning such amoral maneuvers with apparent success.” The Supreme Court annulled findings related to the individual’s injuries that had been based on viewing the deceitfully obtained film.
In the pending case, the Court will not sanction fraud and deceit in the gathering of evidence by the Plaintiff’s private investigators when they intruded, by subterfuge into the Defendant’s private day care and brain therapy sessions.

The Court is further concerned that such conduct is a flagrant violation of Rule 2.100 of the Rules of Professional Conduct for Lawyers in the State of California. Rule 2-100(A) states “[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”

The rule is intended to prevent an attorney from taking advantage of a party in the absence of her counsel, and to preserve the integrity of the attorney-client relationship. The “intent” or “motive” of the attorney initiating the contact does not affect the application of the rule since the rule seeks to “shield the opposing party not only from an attorney’s approaches which are intentionally improper, but, in addition, from approaches which are well intentioned, but misguided.” Abeles v. State Bar (1973) 9 Cal.3d 603, 609. In this respect, the rule may be thought of as having a strict liability component.

Here it is irrelevant that the Plaintiff’s counsel intended to determine whether Gary Chase was feigning his mental condition in order to avoid a deposition. Rule 2-100 is an absolute barrier to any communication, direct or indirect by counsel with Gary Chase about the subject of the representation, i.e., Gary Chase’s mental condition. This bars the Plaintiff’s counsel from making an indirect communication through private investigators with Gary Chase to elicit information about this mental condition. It further does not matter whether the violation was designed for Gary Chase to speak in the presence of the investigator or the investigator to speak to Gary Chase. Both are prohibited.

Accordingly, the Court sets and Order to Show Causes as to why Plaintiff and her counsel should not be sanctioned, monetarily or otherwise, for such conduct. The Order to Show cause shall be returnable at 8:30 am on August 25, 2014 in Department B. Plaintiff’s response to the OSC shall be filed and served by August 1, 2014. Defendant Gary Chase’s Reply shall be filed on August 12, 2014. The Supplemental Investigation Report, Exhibit B to the Declaration of Mark Marmelstein, will not be considered by the Court or any expert, will not be disseminated and will be sealed in the Court’s files, pending the outcome of the OSC.