Case Number: BC662002 Hearing Date: March 15, 2018 Dept: J

Re: John CP Doe v. The Roman Catholic Archbishop of Los Angeles, etc., et al. (BC662002 R/T BC581099)

MOTION FOR AN ORDER REQUIRING PLAINTIFF TO UNDERGO AN INDEPENDENT MENTAL EXAMINATION

Moving Party: Defendants The Roman Catholic Archbishop of Los Angeles and St. Louise De Marillac Catholic Church

Respondent: Plaintiff John CP Doe

POS: Moving OK; Opposing OK; Reply OK

Case No. BC581099

The complaint alleges that plaintiff was sexually molested by his parish priest, Father Christopher Cunningham (“Cunningham”), in 2001 and 2002, when he was 12 and 13 years of age. Plaintiff commenced this action on 5/7/15. On 6/30/15, this matter was transferred to our department from Department 91 (personal injury hub). The First Amended Complaint, filed on 8/21/15, asserts causes of action against Defendants Roman Catholic Archbishop of Los Angeles (“Archbishop”), St. Louise De Marillac Catholic Church (“Parish”), Cunningham and Does 1-100 for:

1. Child Sexual Abuse

2. Negligence

On 5/31/17, the court related Case No. BC662002 to this case. On 11/7/17, the court ordered the matter transferred to Stanley Mosk Courthouse, Department 1 for trial assignment. A jury trial is now set for 4/4/18.

Case No. BC662002

The complaint alleges that plaintiff was sexually molested by his parish priest, Cunningham, in the early 2000’s, when he was approximately 10-11 years of age. The complaint, filed 5/27/15, asserts causes of action against Defendants Archbishop, Parish, Cunningham and Does 1-100 for:

1. Childhood Sexual Abuse

2. Negligence

A jury trial is set for 10/9/18.

Defendants The Roman Catholic Archbishop of Los Angeles and St. Louise De Marillac Catholic Church move the court, per CCP § 2032.310, for an order requiring Plaintiff Jason Dillon (“plaintiff”) to undergo an independent mental examination, on the basis that plaintiff has placed his mental condition in controversy by alleging psychological injury and by seeking damages for mental pain and suffering.

Defendants represent that the examination will be performed by Dr. Marc Cohen, M.D. (“Cohen”), a licensed psychiatrist. Cohen is available to conduct the examination on 3/14/18 and 3/15/18 at his office located at 360 N. Bedford Drive, Suite 317, in Beverly Hills. The examination is a standard psychological examination, which will take place over 1 ½ 8-hour days, beginning at 9:00 a.m. each day. The examination involves a detailed inquiry into many different pertinent topics, including the onset and course of current symptoms, as well as several other clinical domains, such as psychiatric and mental health treatment history, social history, substance abuse, criminal history, medical history and current medications, family history, and relationship histories, as well as other subject matters. The examination will also involve the administration of the Personality Assessment Inventory (PAI), a psychological test. The examination will be video and audio recorded. Copies of all recordings will be provided to counsel within 10 days of the examination. Plaintiff will not be required to complete any patient information forms. The examination will not consist of any invasive test or procedure.

“If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.” CCP § 2032.310(a). “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.” CCP § 2032.310(b). “Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.” CCP § 2032.310(c).

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” CCP § 2032.320(a). “If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.” CCP § 2032.320(b). “A stipulation by a party under this subdivision shall include both of the following: (1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed. (2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.” CCP § 2032.320(c).

“Except for defense physicals in personal injury cases and exams arranged by stipulation, a court order is required for a § 2032.010 et seq. physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” [CCP § 2032.320(a)…].” Weil & Brown, et al., CA; PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:1546. “The examination will be limited to whatever condition is ‘in controversy’ in the action. [CCP § 2032.020(a)].” Id. at ¶ 8:1551. “This means the specific injury or condition that is the subject of the litigation. The examination must be directly related thereto. [See Roberts v. Sup.Ct. (Weist) (1973) 9 Cal.3d 330, 337].” Id. at ¶ 8:1552 (emphasis theirs). “Often, a party’s pleadings put his or her mental or physical condition in controversy, as when a plaintiff claims continuing mental or physical injury resulting from defendant’s acts: ‘A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.’ [See Vinson v. Sup.Ct. (Peralta Comm. College Dist.) (1987) 43 Cal.3d 833, 839…].” Id. at ¶ 8:1552.1 (emphasis theirs). “If the pleadings do not mention a party’s condition, other discovery procedures may. For example, defendant’s answers to interrogatories or deposition questions, ‘I did not see …’ or ‘I did not hear …’ something others saw or heard, may put defendant’s vision or hearing in controversy, justifying an order for medical examination.” Id. at ¶ 8:1556.2.

“The burden is on the moving party to show (by declarations or other evidence) that the examinee’s condition is ‘in controversy’ in the action.” Id. at ¶ 8:1556. “A court order for physical or mental examination must be based on a showing of ‘good cause.’ [CCP § 2032.320(a)]. This generally requires a showing both of: • ‘Relevancy to the subject matter’; and • Specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. [Vinson[, supra,] 43 Cal.3d [at] 840].” Id. at ¶ 8:1557 (emphasis theirs).

“The party seeking the examination must follow the usual noticed motion procedure.” Id. at ¶ 8:1559. “The notice of motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination.” [CCP § 2032.310(b)]…” Id. at ¶ 8:1560 (emphasis theirs). “The requirement for specification of the ‘manner, conditions, scope and nature of the examination’ apparently requires disclosure of whatever diagnostic tests and procedures will be utilized (x-rays, blood and urine samples, etc.). [See CCP § 2032.220(c)].” Id. at ¶ 8:1538 (emphasis theirs).

On 5/25/17, plaintiff filed his complaint, wherein he alleged that “[a]s a direct result of the wrongful conduct alleged herein, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of enjoyment of life; were prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.” (Lachman Decl., ¶ 4, Exhibit “B”).

In response to Special Interrogatory No. 28 (i.e., “IDENTIFY each and every injury and illness that YOU attribute to YOUR childhood sexual abuse by FR. CUNNINGHAM”), plaintiff stated as follows: “[p]laintiff has suffered from prolonged periods of drug abuse and addiction, which has resulted in periods of homelessness as well as incarceration. Plaintiff is just beginning to come to grips with the abuse he suffered by Father Cunningham and the ways in which it has, and continues to affect him.” (Id., ¶ 5, Exhibit “C”).

Plaintiff does not oppose the IME, provided that it be set in May 2018, or after his mandated drug rehabilitation is concluded, and that it be limited to one day. Plaintiff advises that he has a criminal court date in Orange County set for the end of April 2018 relating to a drug possession charge which he expects will also result in a court order for mandatory drug rehabilitation.

In reply, defendants indicate a willingness to limit the examination to one day, and indicate that plaintiff’s mandated drug rehabilitation is scheduled to end on 3/20/18. They therefore request that the examination be conducted on 3/29/18, and state that Dr. Cohen is available on that date. Therefore, absent good cause to the contrary, the motion is granted. The examination is limited to one day, 3/29/18.