Berg v. Berg CASE NO. 113CV243348
DATE: 6 June 2014 TIME: 9:00 LINE NUMBER: 13
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 5 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 6 June 2014, the motion of Clyde James Berg (“Defendant”) to compel leave to obtain a mental examination of Ellena Elisabet Berg (“Plaintiff”) and for judicial notice was argued and submitted. Plaintiff filed formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

I. Background

This action arises from a domestic dispute between Plaintiff and Defendant. Plaintiff alleges that Defendant subjected her to years of physical, sexual, and emotional abuse, starting from when she moved in with him on 11 August 1997. The alleged abuse culminated in an approximately two-day ordeal while Plaintiff was pregnant. Defendant allegedly restrained Plaintiff to her bed and abused her physically, sexually, emotionally, and verbally (“September 2012 incident”).

On 12 September 2012, the District Attorney of Santa Clara County filed criminal charges against Defendant. On 4 October 2012, Plaintiff filed for divorce. The divorce proceedings remain pending as of the filing of this motion.

On 20 March 2013, Plaintiff filed this civil lawsuit against Defendant, alleging the following causes of action: (1) assault; (2) battery; (3) sexual battery; (4) false imprisonment; (5) intentional infliction of emotional distress; (6) negligence; and (7-10) four claims for negligence per se .

Those charges were later dismissed in August 2013 during the preliminary examination.

On 29 April 2014, the Honorable Judge William J. Elfving granted an order for Defendant to file a cross-complaint alleging the following causes of action: (1) malicious prosecution; (2) false imprisonment; (3) false imprisonment – elder abuse; (4) computer crime; (5) intentional infliction of emotional distress; (6) conversion.

II. Discovery Dispute

On 14 May 2014, Defendant filed motions requesting judicial notice of Plaintiff’s Complaint and leave to obtain a mental examination of Plaintiff. Defendant requests that Plaintiff submit to an examination to be conducted by James Missett, M.D. and Francis Abueg, Ph.D. at 9:00 am on 20 June 2014. Defendant also requests that this examination be used jointly in both the civil and family law actions.

Plaintiff, in their opposition to this instant motion, states that they do not oppose Defendant’s right to obtain a psychological evaluation, but Defendant has not made a good faith effort to obtain Plaintiff’s agreement because of the timing of filing this motion. Plaintiff also requests that there should be two separate medical examinations, one for each lawsuit, since the scope of the family law matter is in question.

III. Discussion

A. Request for Judicial Notice

Defendant requests that the Court take judicial notice of Plaintiffs’ Complaint.

The party’s pleadings constitute records of the Superior Court subject to judicial notice under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1774) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)

A court may take judicial notice of court records that are relevant to a pending issue. (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice], Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].) In this motion, Defendant argues that Plaintiff’s allegations within their Complaint demonstrate one of their reasons for compelling a psychiatric evaluation.

Since the Complaint is sufficiently relevant to the pending issue, Defendant’s request for judicial notice is therefore GRANTED.

B. Motion for Leave to Obtain Mental Examination of Plaintiff

Defendant requests an order to obtain a mental examination of Plaintiff for the following reasons:

(1) Plaintiff’s causes of action include claims based in part on emotional harm and emotional distress allegedly inflicted by Defendant;

(2) Plaintiff’s allegations are premised on conduct that she characterizes as PTSD, which has a psychological basis;

(3) Plaintiff’s theories of damages include pain and suffering and emotional damages;

(4) Plaintiff’s allegations may suggest a disconnect with reality.

“If any part desires to obtain discovery by… a mental examination, the party shall obtain leave of court.” (Code of Civil Procedure § 2032.310(a).) A party can discover information about a person’s physical or mental condition if that condition is in controversy. (Code of Civil Procedure § 2032.020(a).) The person must be a party, an agent of a party, or in a party’s custody or legal control. Id.

A plaintiff’s mental condition is placed in controversy only if the plaintiff claims damages for mental or emotional distress that is severe and ongoing. (See Vinson v. Superior Court (1987) 43 Cal.3d.833, 839-40; Acuna v. Regents of Univ. of Cal. (1997) 56 Cal.App.4th 639, 653; Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 340.) Allegations of physical or mental injury in the complaint and denial of the injury or the extent of injury places the condition in controversy. (Schlagenhauf v. Holder (1964) 379 U.S. 104, 119.)

In Plaintiff’s original complaint, she lists intentional infliction of emotional distress as her fifth cause of action and damages for past and future medical, incidental, and service expenses. These damages, which would include therapy visits that are currently ongoing, would be sufficient to place Plaintiff’s mental condition in controversy.

Plaintiff does not dispute this.

Plaintiff requests that there should be two separate examinations since the scope of the family law proceedings may differ from this instant civil proceeding. In response to this request, this Court has two observations:

First, “[n]othing in the language of section 2032 limits the number of mental examinations.” (Shapiro v. Superior Court (1990) 224 Cal.App.3d 1249, 1254.) This Court’s order does not limit the number of mental examinations requested by Plaintiff.

Second, there is no apparent reason to this Court why this desire for two separate examinations should impact the request of the Defendant to proceed with the examination on 20 June 2014.

The motion to compel Plaintiff to a mental examination is GRANTED.

IV. Conclusion and Order

The motions for judicial notice and to compel Plaintiff to a mental examination are GRANTED. Plaintiff shall submit to an examination to be conducted by James Missett, M.D. and Francis Abueg, Ph.D. at 9:00 am on 20 June 2014.