Case Number: BC488483 Hearing Date: April 15, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Tuesday, April 15, 2014
Calendar No: 11
Case Name: Cordero v. County of Los Angeles
Case No.: BC488483
Motion: (1) Motion to Compel Mental Examination
(2) Motion to Strike Supplemental Expert Designation
Moving Party: (1) Defendant County of Los Angeles
(2) Plaintiff William R. Cordero
Responding Party: (1) Plaintiff
(2) Defendant
Notice: OK

Tentative Ruling: (1) Motion to compel mental examination is granted.

(2) Motion to strike supplemental expert designation is denied.
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Background –
On 7/18/12, Plaintiff William R. Cordero filed this action against Defendant County of Los Angeles for retaliation in violation of Labor Code § 1102.5 arising out of his temporary reassignment from duty with the Los Angeles County Sheriff’s Department (“LACSD”) on Catalina Island after allegedly complaining about conduct by a superior, Captain Jeff Donahue. Plaintiff alleges that he suffered retaliation after complaining about Captain Donahue taking an inmate golfing to provide Captain Donahue golfing lessons. Trial is set for 5/19/14; FSC for 5/8/14.

Motion to Compel Independent Mental Examination –
Defendant moves to compel the mental examination of Plaintiff. CCP § 2032.020(a) provides in pertinent part: “Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or other person is in controversy in the action.” CCP § 2032.020(c) provides: “A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” “If any party desires to obtain discovery . . . by a mental examination, the party shall obtain leave of court.” CCP § 2032.310(a).

The court shall grant a motion for mental examination only for good cause shown. CCP § 2032.320(a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259. Generally, “good cause” is made out by showing that the exam is “relevant to the subject matter” and specific facts justify discovery. Vinson, 43 Cal.3d at 840.

1. Procedural Issues
Plaintiff argues that Defendant’s motion does not present evidence to support the time, place, manner, conditions, scope, and nature of the examination. However, there is no requirement of an evidentiary showing as to this information. See CCP § 2032.310(b); CCP § 2032.320(a). Notably, Plaintiff’s citation to Carpenter, 141 Cal.App.4th at 260, concerned the sufficiency of the Court’s order pursuant to CCP § 2032.320(d). Notwithstanding this, Defendant has submitted the declaration of Dr. James R. High which identifies such information. High Decl. ¶¶ 3-9.

2. Mental Condition in Controversy
“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. The ‘controversy’ surrounding such a person’s mental condition includes not only the nature and extent of the person’s current mental injury but also the actual cause of this injury. In contrast, where a plaintiff alleges that she is not suffering any current mental injury but only that she has suffered emotional distress in the past arising from the defendant’s misconduct, a mental examination is unnecessary because such an allegation alone does not place the nature and cause of the plaintiff’s current mental condition ‘in controversy.’” Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887.

Plaintiff alleges that he “was personally humiliated and has become mentally upset, distressed and aggravated” as a result of the alleged retaliatory conduct. Complaint ¶ 32; see also Pl.’s Response to Form Interrogatory (General) No. 6.2 dated 11/14/12[Carroll Reply Decl. Ex. A] (stating that Plaintiff has suffered “humiliation, headaches, stress, sleeplessness, embarrassment, sadness anxiety, frustration, feelings of hopelessness, and other . . . emotional distress”). Plaintiff has provided a supplemental response on 2/24/14 indicating that Plaintiff has been prescribed anti-depressants as a result of the alleged retaliatory conduct. Pl.’s Supp. Response to Form Interrogatory (General) No. 6.5 [Carroll Decl. ¶ 4, Ex. C]. Plaintiff has designated doctors to testify at trial. Carroll Reply Decl. ¶ 7, Ex. F.

By asserting a causal link between Plaintiff’s mental distress and Defendant’s conduct, Plaintiff implicitly claims that it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for distress. Vinson, 43 Cal.3d at 840-41. Plaintiff argues that he must claim severe emotional distress to support a mental examination. However, Vinson (43 Cal.3d at 840-41) did not hinge on severe emotional distress being claimed; and Doyle (50 Cal.App.4th at 1886-87) concerned whether mental distress was ongoing which is not in dispute here. Therefore, Plaintiff has placed his mental condition in controversy.

3. Other Arguments
Plaintiff argues that Defendant must establish that the information cannot be obtained from less intrusive means. Opp’n p. 6:9-10. However, neither Vinson (43 Cal.3d at 840) nor Carpenter (141 Cal.App.4th at 259) state this requirement. Additionally, to the extent Plaintiff argues that he has already been previously examined by other medical practitioners, this would defeat the purpose of an independent mental examination to test Plaintiff’s claims (see Vinson, 43 Cal.3d at 842).

Plaintiff argues that the scope of the mental examination should be limited based on Defendant’s counsel’s deposition of Plaintiff. However, there is no reason why questions posed at deposition would be sufficient to support the examiner’s findings (cf. CCP § 2032.610(a)(1) (addressing the production of a written report of the history, examinations, and findings of the examiner)).

Plaintiff argues that the Court should order the parties to further meet and confer about the appropriate order. However, to the extent Plaintiff is concerned about the nature and scope of the examination, the Court notes that it is assumed, absent contrary evidence, that the examiner will adhere to the conditions and scope of the examination (Vinson, 43 Cal.3d at 856) and Plaintiff has the right to record the examination on audio tape (CCP § 2032.530). Plaintiff makes no showing as to why any other person need be present (see Toyota Motor Sales, U.S.A., Inc. v. Superior Court (2010) 189 Cal.App.4th 1391, 1397 (concerning counsel)) or why specific issues such as breaks need be included in the order.

4. Ruling
Therefore, the motion to compel an independent medical examination is granted. Defendant to submit a proposed order in compliance with CCP § 2032.320(d) consistent with the 3/20/14 ex parte application and Dr. High’s declaration.

Motion to Strike Supplemental Expert Designation –
The parties agreed to a simultaneous exchange of initial expert witness designations (pursuant to CCP § 2034.260) for 2/3/14. Schabloski Decl. ¶ 6, Ex. 3. On 1/31/14, Defendant served its initial designation of expert witnesses indicating that it had not retained any experts at this time and reserving the right to call further expert witnesses as necessary (id. ¶ 7, Ex. 4); on 2/3/14, Plaintiff served its initial designation of expert witnesses designating a retained forensic economist and seven other non-retained treating physicians (id. ¶ 8, Ex. 5). On 3/3/14, Defendant served its supplemental expert designation identifying an economist, a psychiatrist, and an internist as expert witnesses. Id. ¶ 10, Ex. 11. Plaintiff moves to strike Defendant’s supplemental expert designation.

Preliminarily, although Plaintiff has argued that the supplemental expert designation was untimely (see CCP § 2034.280(a)), Plaintiff has since withdrawn this argument (Reply p. 2 n.2) in light of Defendant’s evidence that the parties had agreed to extent the time to serve a supplemental expert designation to 3/3/14 (Carroll Decl. ¶ 2, Ex. A).

Plaintiff’s motion therefore proceeds only pursuant to Fairfax v. Lords (2006) 138 Cal.App.4th 1019. Fairfax was a medical malpractice case: at the initial simultaneous exchange of expert designations, the plaintiff identified a retained expert and the defendant identified no retained experts and reserved the right to designate rebuttal expert witnesses. Id. at 1022. After receipt of plaintiff’s designation list, the defendant designated an expert witness in a “second designation.” Id. at 1023. The Court of Appeal concluded that the defendant had no right to delay designation of expert witnesses until after he had the opportunity to view the plaintiff’s timely served designation (id. at 1027) and struck the defendant’s “second designation” (id. at 1028).

The Court of Appeal’s conclusion in Fairfax was based on whether “[r]easonably competent defense counsel” could determine what issues were subject to dispute in order to designate expert witnesses. Id. at 1026. The Court of Appeal reasoned that because the defendant “had every reason to anticipate” the plaintiff’s designation, the defendant had a corresponding obligation to designate whatever expert he expected to testify on the issue simultaneously with the plaintiff’s designation. Id. at 1027.

Plaintiff argues that Defendant could and should have anticipated Plaintiff’s claims for economic and emotional distress damages. The Court disagrees. Plaintiff’s argument relies on his claims of economic and emotional distress damages, the discovery propounded by Defendant, and a 1/23/14 telephone conversation in which Plaintiff’s counsel indicated that she needed information to give to her economist expert for Plaintiff’s damages (Schabloski Decl. ¶ 33). However, unlike in medical malpractice cases (see Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467), expert testimony is not required for emotional distress (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 895) or future earning capacity (Gargir v. B’nei Akiva (1998) 66 Cal.App.4th 1269, 1280-81). Additionally, the Court notes that on 2/24/14, Plaintiff provided supplemental discovery responses indicating ongoing mental distress and identified new alleged retaliatory incidents. Carroll Decl. ¶ 5, Ex. D. Under these circumstances, the Court finds that Fairfax does not apply and Defendant’s supplemental expert designation is not improper. The motion to strike is denied.