Case Number: BC50299 Hearing Date: February 17, 2015 Dept: 37
CASE NAME: Jeffrey Dunbar v. State of California Department of Transportation
CASE NO.: BC502099
HEARING DATE: February 10, 2015
DEPARTMENT: 37
TRIAL DATE: February 17, 2015
NOTICE: OK
SUBJECT: Motion to Compel Mental Examination of Plaintiff
MOVING PARTY: Defendants The State of California Department of Transportation, acting by and through the Department of Transportation, Frank Terrazas, and Diane Markus
RESP. PARTY: Plaintiff Jeffrey Dunbar

TENTATIVE RULING

The motion to compel Plaintiff’s mental examination is GRANTED IN PART

STATEMENT OF THE CASE

This is an employment action based on acts of racial discrimination and harassment alleged by Plaintiff Jeffrey Dunbar (“Plaintiff”) while he was employed by the State of California, Department of Transportation (“Caltrans”) at the Long Beach and Santa Fe Yards between 2010 and 2012. The conduct which forms the basis of the action was allegedly committed by his coworkers, Defendants John Salazar (“Salazar”), Frank Terrazas (“Terrazas”) and Diane Markus (“Markus”). The factual background of the case is set forth in substantially more detail in the Court’s January 16, 2015 ruling on the Defendants’ summary judgment motion.

ANALYSIS

Procedural Issues

The Defendants assert that the opposition was untimely. The deadline for serving and filing opposition papers is measured backwards from the date of hearing (9 court days), regardless of whether the moving party was served personally, or by mail, overnight delivery or fax. (See Blake v. Ecker (2001) 93 cal.App.4th 728, 736 n.6, disapproved on other grounds in Le Francois v. Goel (2005) 35 Cal.App.4th 1094, 1107.) Service by ordinary mail is reasonably calculated to ensure delivery not later than the close of the next business day, where the mail is addressed locally. (Code Civ. Proc., § 1005(c).)

The opposition was timely filed with the Court on February 4, 2015. In the reply, Defendants argue that the opposition should not be considered because they did not receive the opposition by mail and the electronic copy of the opposition was received on February 5, 2015. Nonetheless, the Court considers the merits of the opposition as Defendants appear to have been sufficiently in receipt of it and not prejudiced by any delay.
Plaintiff raises the procedural issue of the lack of a separate statement to support the motion. California Rules of Court, Rule 3.1345(a) (6) requires a separate statement when moving to compel compliance with a demand for medical examination “over objection.” Assuming that the above requirement applies a motion for a mental examination, the Court will likewise reach the merits of the motion. The respective briefings have informed the court of the parties’ positions and a separate statement would not, in this case, assist the Court in deciding the motion.

Merits

According to Code of Civil Procedure section 2032.310(a), a party seeking to obtain discovery by a mental examination must obtain leave of court. The motion for an examination must 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.” (Code Civ. Proc., § 2032.310(b).) The motion must also be accompanied by a meet and confer declaration. (Id.) Any party may obtain discovery of another party’s mental condition if it is in controversy in the action. (Code Civ. Proc., § 2032.020(a).)

The court shall grant a motion for a mental examination only for good cause shown. (Code Civ. Proc., § 2032.320(a).) To establish “good cause,” the moving party must produce specific facts justifying the discovery and that the subject matter is relevant to the action. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) “While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.” (Id.) Good cause is found where the truth of plaintiff’s claims—such as his or her continual suffering by diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation, and severe emotional distress—is relevant to the plaintiff’s cause of action and justifying facts have been shown with specificity. (Id. at 840-41.) Subject to the plaintiff’s right to privacy, defendants must be allowed to investigate the continued existence and severity of the plaintiff’s alleged damages. (Id. at 841.)

“An order granting a mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (Code Civ. Proc., § 2032.320(d).)

Defendants move the Court for an order compelling Plaintiff to submit to an independent medical examination, arguing that Plaintiff has placed his mental condition in controversy in this action. Defendants assert they need to conduct the examination to defend all the claims. They seek to investigate potential defenses, including evidence that there may be other explanations for Plaintiff’s conduct and alleged distress. Defendants argue that Plaintiff has placed his mental condition in controversy as he states that he “… has suffered and continues to suffer substantial (a) humiliation, serious mental anguish and emotional and physical distress….” (SAC, ¶¶ 72, 78, 87, 92, 97, 104, 111, 119; Prieto Decl., Ex. 1 “Dunbar Depo.” pp. 201-02.) Furthermore, Defendants believe that there are other reasons Plaintiff’s emotional state is affected, including his substantive abuse problems and domestic violence issues with his family. (See Dunbar Depo., pp. 26-28, 30-31, 154-55.) As a result, Defendants formerly requested Plaintiff to submit to an independent mental examination on August 25, 2014 and December 3, 2014, which Plaintiff’s counsel refused. (Prieto Decl., Exs. 3-7.)

The Court agrees that Plaintiff has placed his mental condition in controversy and that to defend the action Defendants are entitled to an appropriate examination. Thus, Defendants have established good cause for the mental examination. Here, Plaintiff has accused Defendants of causing him mental and emotional ailments, which Defendants deny. In Vinson, the court found that plaintiff placed her mental injuries at issue when she asserted a causal link between her mental distress and defendant’s conduct and not predicated on preexisting mental conditions. (Vinson, supra, 43 Cal.3d at 839-40.) In the SAC, Plaintiff alleges that “[a]s a result of Defendant’s” discrimination, harassment, wrongful conduct, and failure to prevent harassment and discrimination, Plaintiff suffered such emotional distress and mental anguish. (SAC, ¶¶ 72, 78, 87, 92, 97, 104, 111, 119.) Thus, there is good cause to have Plaintiff submit to a mental examination.

Furthermore, defense counsel, Alexander Prieto, has submitted a declaration stating that he has made good faith attempts to arrange a mental examination of Plaintiff. On August 25, 2014 and December 3, 2014, Mr. Prieto sent letters to Plaintiff’s counsel in order to request that Plaintiff submit to a mental examination. (Prieto Decl., ¶ 7; Exs. 3, 5.) Plaintiff’s counsel responded to both letters on September 4, 2014 and December 9, 2014, stating Plaintiff’s refusal to submit to such an examination. (Prieto Decl., ¶ 7; Exs. 4, 6.) Here, there has been a good faith attempt to meet and confer regarding the mental examination, pursuant to Code of Civil Procedure section 2032.310.

While Defendants have established good cause, the Court agrees with Plaintiff that at least at present Defendants have not established all aspects of their request. The motion for an examination must 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.” (Code Civ. Proc., § 2032.310(b).) Moreover, section 2032.310(d) states that the order granting the motion must include the “diagnostic tests and procedures, conditions, scope, and nature of the examination” (emphasis added). (See Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 268.)

In the notice of the motion, Defendants state that the examination is to take place on January 29, 2015 (or any date that the Court sets) at 10801 National Blvd., Suite 611, Los Angeles, CA 90064, by Dr. Ari D. Kalechstein, Ph.D. The declaration of Alexander Prieto states that Dr. Kalechstein is licensed to practice psychology in California and qualified to conduct the examination. (Prieto Decl., ¶ 4.) A mental examination 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. (Code Civ. Proc., § 2032.020(c).) The moving papers state that the proposed examiner is a licensed psychologist and in the reply, Defendants state that Dr. Kaleschtein’s C.V. was served on Plaintiff with Defendants’ Expert Exchange on December 18, 2014.

Defendants state that the examination will consist of a clinical interview for 3 to 4 hours, focusing on developmental/social history, academic/employment history, legal history, military history, substance abuse history, medical history, mental health history, and current symptoms profile. (Prieto Decl., ¶ 5.) Plaintiff will also be administered a “battery of tests,” which will last for 4 to 6 hours. (Prieto Decl., ¶ 5.) While Defendants have sufficiently described the clinical interview, the Court agrees that the term “battery of tests” is unclear and does not delineate what the manner, condition, scope, and nature of that examination will be. In the reply, Defendants delineate all of the tests that are to be administered over a period of 4-6 hours, but this was not provided earlier to Plaintiff until after the opposition, which does not provide Plaintiff with sufficient notice. (Reply, pp. 3-4.) Thus, the Court will not order such tests at this time. However, the Court directs the parties to meet and confer on what test are appropriate. Clearly, some tests could be necessary but the long list provided in the reply does not provide information that all or any of such tests are required, and Plaintiff has not had an opportunity to consider this issue.

For the reasons set forth above, the motion is granted in part. The motion is denied in part at this time with respect to the “battery of tests”, subject to this issue being addressed again after a meet and confer on this issue.