Case Number: BC621220 Hearing Date: May 25, 2018 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

GODREY RUFFIN,

Plaintiff,

vs.

U.S. TELEPACIFIC CORP., MPOWER COMMUNICATIONS CORP., ARRIVAL COMMUNICATIONS, INC., TELEPACIFIC COMMUNICATIONS CORPORATION, and DOES 1 through 10, inclusive,

Defendants.

CASE NO.: BC621220

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR TERMINATING OR EVIDENTIARY SANCTIONS OR, ALTERNATIVELY, TO COMPEL; DEFENDANTS’ MOTION TO COMPEL MENTAL EXAM

8:30 a.m.

May 25, 2018

Dept. 56

On May 20, 2016, Plaintiff Godrey Ruffin filed this action against Defendants U.S. TelePacific Corp., MPower Communications Corp., Arrival Communications Inc., and TelePacific Communications Corporation arising out of her employment and termination as an accounts payable specialist. Plaintiff asserts causes of action for (1) Fair Employment and Housing Act (“FEHA”) disability discrimination, (2) FEHA race discrimination, (3) FEHA age discrimination, (4) FEHA retaliation, (5) FEHA failure to engage in the interactive process, (6) FEHA failure to accommodate, (7) FEHA failure to prevent, (8) whistleblower retaliation, and (9) wrongful termination in violation of public policy.

Motion for Sanctions/to Compel

All Defendants seek terminating or, alternatively, evidentiary sanctions against Plaintiff. Defendants contend that they were required to obtain a Court order for Plaintiff to appear at her October 10, 2017, and October 11, 2017, depositions; although Plaintiff then appeared on the aforementioned dates, she prematurely terminated her deposition. After a stay of discovery for mediation purposes, Defendants noticed Plaintiff’s deposition for April 18, 2018. Plaintiff then failed to appear for her noticed deposition. Accordingly, Defendants seek terminating sanctions for Plaintiff’s failure to appear at her noticed deposition, or alternatively, an evidentiary sanction precluding her testimony at trial. In the alternative to terminating or evidentiary sanctions, Defendants seek for the Court to compel Plaintiff’s deposition and to award monetary sanctions.

Plaintiff opposes the Motion arguing that (1) she never received notice of her April 18, 2018, deposition, (2) Plaintiff was sufficiently deposed in October 2017 such that no further deposition is necessary, and (3) terminating or evidentiary sanctions are an outrageous request for this matter.

The Court, in its discretion, declines to award terminating or evidentiary sanctions which would, at this juncture, be punitive in nature. Plaintiff has failed to appear at one deposition and claims she did not receive service of the requisite deposition notice. This is not grounds for terminating or evidentiary sanctions.

As to Defendants’ request to compel, the Court has weighed the evidence provided by the parties and finds that Plaintiff was served with Defendants’ notice of deposition for her April 18, 2018, deposition. Further, although Plaintiff argues that she was sufficiently deposed in October 2017, Plaintiff does not argue that a subsequent deposition will be comprised of irrelevant, cumulative, burdensome, or harassing questions. Further, Plaintiff has not otherwise sought a protective order precluding a subsequent deposition. Additionally, Code Civ. Proc. § 2025.290(b)(4) provides that there is no strict time limit for a deposition in an action by an employee against her former employer. Finally, Plaintiff was deposed for a total of only approximately eight hours in October 2017. In conclusion, the Court does not find a sufficient ground to preclude Plaintiff’s deposition. Accordingly, the Court will require that Plaintiff be deposed within thirty days of this Order. Defendants request that Plaintiff be deposed for two, seven hour sessions. The Court will allow this given that Defendants’ deposition notice requested that the deposition continue day-to-day until completed. (See Bishop Decl., Exhibit N.)

In light of the dispute over service, the Court declines to award monetary sanctions.

In sum, Defendants’ request for terminating and evidentiary sanctions is DENIED. Defendants’ Motion to Compel Plaintiff’s deposition is GRANTED, as set forth herein.

Motion to Compel Mental Examination

All Defendants seek to compel Plaintiff’s mental examination because Plaintiff has refused to submit to such an examination.

This Court has the authority to compel a mental examination of a party. Code of Civil Procedure section 2032.310(a) provides that any party seeking to obtain discovery by a mental examination “shall obtain leave of court.” A motion for a mental examination “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.” (Id. § 2032.310(b).) Any grant of a motion for a mental examination must be based on “good cause.” (Id. § 2032.320(a).)

Plaintiff opposes the Motion, arguing (1) Defendants failed to meet and confer in good faith, (2) the Motion is untimely, and (3) Defendants’ request for a medical exam is overbroad and should, at minimum, be subject to several conditions as set forth in Plaintiff’s memorandum of points and authorities.

First, the Court finds that the Defendants sufficiently met and conferred in good faith by providing a three page letter to Plaintiff setting forth their contentions. (See Bishop Decl., Exhibit 3.)

Next, Plaintiff argues the Motion is untimely in that Defendants brought the instant Motion only after seeking to continue the trial date in this matter multiple times; however, the Court does not find such to be conduct precluding a mental examination.

Plaintiff also argues that the proposed order for a mental examination provided by Defendants suffers from several defects. First, Plaintiff argues that Defendants’ proposed mental exam has almost no substantive limit, fails to adequately set forth the scope of examination and tests to be administered, and impermissibly seeks irrelevant history, including medical history.

The Court finds that Defendants’ proposed order adequately sets forth the areas of examination as well as the specific tests to be administered. Indeed, the proposed order provides for a “detailed interview and mental status examination, which covers a variety of relevant topics, including . . . the reported circumstances of onset of the alleged emotional injury or injuries; and how those symptoms have unfolded over time to the present . . . . Pertinent areas of inquiry . . . include developmental history, education, employment, social and marital history, legal history . . . general medical history, prior psychiatric history, substance use, and family history.” (Proposed Order ¶ 3.) Further, the order provides, “testing will include, as time permits, the MMPI-2 or MMPI-2-RF, Personality Assessment Inventory (PAI), Mini-Mental State Examination (MMSE), and the Trauma Symptom Inventory – 2 (TSI-2).” (Proposed Order ¶ 4.) Plaintiff’s request that only the MMPI-2 test or form be administered is rejected as Plaintiff sets forth no substantive basis for such restriction. On the other hand, Defendants are limited to administering only those tests specifically enumerated in their proposed order.

Furthermore, Plaintiff is correct that Defendants’ proposed order is overbroad in seeking medical and personal history without a temporal limitation. Plaintiff argues that such history is overbroad and irrelevant altogether; however, such history is relevant to determining alternative sources for Plaintiff’s claimed emotional distress. Plaintiff’s citation to California Practice Guide, Civil Procedure Before Trial, 8:1528 is unpersuasive in that it relates to a demand for a physical examination. The Court, in its discretion, will limit any inquiry into Plaintiff’s history—whether legal, medical, or personal in nature—to all events occurring from within the five years preceding Plaintiff’s employment with Defendants until the present. Any further inquiry is overbroad given Plaintiff’s privacy rights. Plaintiff did not put her entire medical and personal history at issue by filing this action.

Plaintiff also requests copies of all written materials provided by the examiner to Plaintiff and provided by Plaintiff to the examiner; Plaintiff similarly requests the raw data used by the examiner in making his determinations. Whether Plaintiff ought to receive such written materials is within the discretion of the Court. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 272.) The Court believes that, given the spirit of discovery to facilitate the open exchange of information between parties, Plaintiff ought to receive the written materials she requests.

Plaintiff also requests that the mental examination be limited to two to four hours given that Defendants have already acquired significant amounts of discovery from Plaintiff. The discovery which has already occurred, however, is different from a mental examination. Defendants request approximately 6-7 hours for the exam. The Court, in its discretion, will allow for six hours of a mental examination, excluding breaks.

Next, Plaintiff requests that she be able to record the audio from the examination and obtain Defendants’ recording as well. Plaintiff may record the mental examination (Code Civ. Proc. § 2032.530), but there is no basis to require that Defendants also tender their recording of the mental examination.

Finally, Plaintiff also requests that she be able to take a lunch break as well as other breaks. This is reasonable. The Court will allow for a lunch break as well as any other breaks deemed necessary by Plaintiff. Plaintiff’s six hour mental examination, however, should be completed within one day, with, as stated above, the total time allowed for the examination not to include those breaks. If the examination time is not exhausted at the end of that working day due to the breaks taken by Plaintiff, however, the remainder of the examination time, as deemed necessary by the examiner, may be conducted on another day as set by Defendants.

The Court finds good cause for a mental examination in that Plaintiff claims $2.5 million dollars in emotional distress damages arising from her employment with Defendants. Further, subject to the restrictions and limitations imposed by this Court, Defendants’ proposed order complies with the requirements of Code Civ. Proc. § 2032.320. Accordingly, the Motion is GRANTED, subject to the restrictions set forth in this Order.

The Court notes that the parties have engaged in heavy abuse of discovery motions in this action. The Court will require that all further discovery disputes be subject to an informal discovery conference (“IDC”) prior to a motion being filed, as set forth in the notice on the Court’s website for Department 56. Any further discovery motions filed without an IDC having been first conducted will be taken off-calendar to allow the parties to schedule and the Court to conduct an IDC.

Defendants are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 25th day of May 2018

Hon. Holly J. Fujie

Judge of the Superior Court