Case Number: BC666250 Hearing Date: January 29, 2019 Dept: A

# 7. Cynthia Arroyo v. Nicolas Arroyo, Sr., et al.

Case No.: BC666250

Matter on calendar for: motion to compel independent medical exam

Tentative ruling:

I. Background

Plaintiff Cynthia Arroyo alleges that defendant Nicolas Arroyo, Sr., her grandfather, defendant Eliu Mesinas, an uncle, and defendant Aurelio Arroyo, another uncle, sexually molested her when she was a minor. Defendants Yvonne I. Arroyo, Nicolas Arroyo, and Jesus A. Espinoza (Doe 1), owned the house in Compton where some of the alleged molestation took place.

The Complaint alleges three causes of action for:

(1) Sexual battery;

(2) Battery; and

(3) Negligence

Only the third cause of action is alleged against defendants Yvonne I. Arroyo, Nicolas Arroyo, and Jesus A. Espinoza (Doe 1). These defendants now seek to compel a mental examination. They are joined separately by Salvador Arroyo and Bertha Arroyo.

For the reasons set forth below, the Court grants the motion.

II. Standard

Code of Civil Procedure § 2032.310(a) requires a party to obtain leave of court to obtain a mental examination of a party. A party moving under § 2032.310 must show good cause. (C.C.P., § 2032.320(a).) When a party stipulates that (1) no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claim, and (2) no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages, the court “shall not order a mental examination . . . except on a showing of exceptional circumstances.” (C.C.P., § 2032.320(b–c).)

III. Analysis

Plaintiff’s attorney submitted a declaration under Code of Civil Procedure § 2032.320(c); it is now clear that plaintiff seeks emotional distress damages. The effect of the stipulation is to require defendants to show “exceptional circumstances” for a mental examination. (C.C.P., § 2032.320(b).) Neither the parties nor the Court have been found caselaw or statutory authority describing what constitutes “exceptional circumstances.” The parties have turned to Weil & Brown’s The Rutter Group California Practice Guide: Civil Procedure Before Trial [8:1568] for guidance. The Rutter Guide states:

“For Example, “exceptional circumstances” might include situations where, although plaintiff offers such a stipulation [C.C.P. § 2032.320 stipulation], plaintiff’s behavior is obviously irrational or plaintiff’s physical appearance suggests a mental injury. Under these circumstances, although the stipulation precludes plaintiff from expressly making a claim for mental injury or offering evidence on the subject, the jury might conclude that plaintiff sustained such an injury and award damages accordingly.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) paragraph 8:1568, Ch. 8I–3.)

Here, the alleged physical injuries are serious and accompanied by severe resultant emotional distress. Should the jury find for plaintiff, it might conclude she suffered a mental injury. This is supported by plaintiff’s allegation of post-traumatic stress disorder, a medical diagnosis of mental injury. Defendants must be allowed to investigate the existence and severity of plaintiff’s emotional distress.

The nature and scope of the evaluation will be to evaluate the cause and extent of plaintiff’s emotional distress, including diagnosis, prognosis, and limitations. The exam includes five different psychological tests: 1) Minnesota Multiphasic Personality Inventory 2 RF, 2) Millon Clinical Multiphasis Inventory-III, 3) Structured Inventory Malingered Symptoms (SIMS), 4) Test of Malingered Memory, and 5) Trauma Symptom Inventory-2.

As to the date of the exam, defendants have a February 14, 2019 summary judgment hearing and trial is set for April 29, 2019. The joining defendants have their respective summary judgment motions scheduled for March 19, 2019. A date of February 22, 2019, at 10:00 a.m., is adequately distanced from trial and prevents plaintiff from undergoing a needless IME should the case be disposed of on February 14, 2019.

IV. Ruling

The motion to compel an IME is granted.

Plaintiff must participate in a mental exam on February 21, 2018, at 10:00 a.m., at 133 Promenade Walk North, Suite 108, Long Beach, California 90802. The nature and scope of the evaluation will be to evaluate the cause and extent of plaintiff’s emotional distress, including residual emotional injuries and their diagnosis, prognosis, and limitations. The exam will not exceed a total of 8 hours. It will include the following psychological tests: 1) Minnesota Multiphasic Personality Inventory 2 RF, 2) Millon Clinical Multiphasis Inventory-III, 3) Structured Inventory Malingered Symptoms (SIMS), 4) Test of Malingered Memory, and 5) Trauma Symptom Inventory-2.