LORENA CUEVAS v. TWIN PELICAN SURGICAL GROUP, ET AL.

CASE NO.: 24NWCV01862 HEARING: 09/10/2026 @ 9:30 AM #10 TENTATIVE ORDER Defendant Twin Pelican Surgical Group's motion to compel the mental examination of Plaintiff is GRANTED. Moving party to give notice.

Defendant Twin Pelican Surgical Group (Defendant) moves to compel Plaintiff Lorena Cuevas (Plaintiff) to submit to an independent mental examination (IME).

Background

On June 17, 2024, Plaintiff filed this sexual harassment action against Defendants Twin Pelican Surgical Group dba BGMG Cosmetics, Carlos Vasquez, and Does 1 through 25. The complaint alleges the following: Plaintiff worked at BGMG Cosmetics and "endured her supervisor, Mr. Vazquez's, inappropriate comments and advances for nearly a year" including Vasquez telling Plaintiff "she could only have a new work phone if she 'hooked up' with him or sent him nude photographs" and Vasquez and "tr[ying] to grab her body, forearms, and hands as she walked past." (Complaint, P. 1.)

The complaint alleges that Vasquez, the owner Dr. Sahafi, and other doctors were inappropriate with female patients and staff. (Complaint, P. 34.) Plaintiff alleges after making complaints, Defendants did not properly investigate and instead retaliated against her. (Complaint, P. 1.) The complaint asserts six causes of action: (1) sexual harassment - hostile work environment in violation of Government Code Sec. 12940(a); (2) sexual harassment--quid pro quo in violation of Government Code Sec. 12940(j); (3) failure to prevent sexual harassment in violation of Government Code Sec. 12940(k); (4) retaliation for reporting sexual harassment in violation of Government Code Sec. 12940(h); (5) retaliation in violation of Labor Code Sec. 1102.5(b)-(c); and (6) failure to maintain employment records in violation of Labor Code Sec.Sec.226, 432, 1174, and 1198.5.

On April 3, 2026, Defendants filed a Notice of Stay of Proceedings pursuant to a bankruptcy petition filed by Vasquez.

Legal Standard

A party seeking to obtain discovery or a physical or mental examination shall obtain leave of court. (Code Civ. Proc., Sec. 2032.310, subd. (a).) The motion "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." (Code Civ. Proc., Sec. 2032.310, subd. (b).) "The court shall grant a motion for a physical or mental examination...only for good cause shown." (Code Civ. Proc., Sec. 2032.320, subd. (a).) Meet and Confer A motion under Code of Civil Procedure section 2032.210 "shall be accompanied by a meet and confer declaration under Section 2016.040." (Code Civ. Proc., Sec. 2032.310, subd. (b).) The parties have adequately met and conferred. (Biondi Decl., P.P. 6-7.)

Discussion

Defendant moves to compel Plaintiff to submit to an IME as follows: DATE/TIME: "Defendant requests that the date and time for the examination be set by the Court after coordination with the parties and Dr. Williams, and that it have an anticipated duration of approximately four (4) hours."

PLACE: 5000 Birch Street, West Tower, Suite 300, Newport Beach, California 92660 NATURE: Clinical interview; Psychological testing using the Minnesota Multiphasic Personality Inventory, Third Revision (MMPI-3); Psychological testing using the Millon Multiaxial Clinical Inventory, Fourth Revision (MCMI-IV). Defendant states the examination will be performed by psychologist Martin H. Williams, Ph.D. Defendant argues that Plaintiff directly places her mental and emotional condition at issue. Defendant refers to the FAC: "As a direct result of the Defendants' conduct, Ms.

Cuevas has suffered, and continues to suffer, lost wages, humiliation, embarrassment, emotional distress, and mental anguish." (FAC, P. 79.) Defendant refers to Plaintiff's deposition testimony regarding her sending nude pictures of herself to Vasquez upon Defendant's alleged request and argues that an IME is necessary "to explain this illogical and contradictory conduct." (Biondi Decl., P. 11.) Defendant also raises that Plaintiff, upon quitting from Defendant, claimed "Mr. Vasquez's harassment and BGMG's failure to address the harassment caused me to take disability leave to care for my mental health.

Given that BGMG continues to employ Carlos Vasquez, continuing to work at BGMG would be detrimental to my health." (Biondi Decl., P. 13.) In opposition, Plaintiff argues that Defendant is required to show "exceptional circumstances" to compel an IME because Plaintiff has already proposed a stipulation pursuant to Code of Civil Procedure section 2032.320, subdivision (c). Plaintiff recounts the following: On July 8, 2026, defense counsel asked Plaintiff's counsel whether Plaintiff would stipulate to an IME, to which Plaintiff's counsel "responded stating she would 'stipulate to garden variety [emotional distress,] so experts aren't necessary for either side."' Defendants' attorney responded by asking for a definition of 'garden variety' emotional distress, which I provided explaining that it is '[t]he ordinary, commonplace mental suffering that an average person would experience in a similar situation.'" (Haegquist Decl., P. 5.)

On July 15, 2026, Defense counsel sent a draft stipulation to which Plaintiff's counsel repeated that Plaintiff does not agree to an IME but only to garden variety emotional distress. (Haegquist Decl., P. 7.) Plaintiff's counsel confirmed that Plaintiff would not appear for an August 17, 2026 IME. (Haegquist Decl., P. 5.) Plaintiff's counsel emailed a proposed "Stipulation pursuant to Code of Civil Procedure Sec.2032.320(c) Regarding Plaintiff's Emotional Distress Damages" to defense counsel, to which Defendant did not respond. (Haegquist Decl., P. 10.)

The proposed stipulation provides: (1) "[Plaintiff] represents and agrees that she is not making any claim for mental and emotional distress over and above that usually associated by experiencing sexual harassment, failure to prevent harassment, retaliation and job loss as alleged against [Defendants] in her Complaint"; (2) "Plaintiff represents and agrees that she will proffer no expert testimony regarding her usual mental and emotional distress at trial in support of her claim for damages" and (3) "Nothing herein shall prohibit Plaintiff from seeking to recover damages for any ordinary, garden-variety, and non-severe emotional distress, and/or from offering her own testimony at trial concerning such damages." (Haegquist Decl., Exh. 3.)

Plaintiff states that she amended her form interrogatory responses to add, in addition to and without waiving privacy objections, "Plaintiff has suffered and continues to suffer the mental and emotional distress that is usually associated with sexual harassment, failure to prevent harassment, retaliation and loss of employment, including but not limited to, loss of self-esteem and self-confidence, humiliation, injury to reputation, embarrassment, worry, and anxiety." (Haegquist Decl., P. 12, Exh. 4.)

Code of Civil Procedure section 2032.320, subdivision (b) provides: "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." The stipulation shall include: (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" and (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." (Code Civ.

Proc., Sec. 2032.320, subd. (c).) Plaintiff contends the stipulation sent to defense counsel bars a mental examination absent exceptional circumstances. In reply, Defendant argues that Plaintiff's motion is frivolous because it relies on five unpublished trial court decisions as persuasive authority. Defendant cites to California Rules of Court, rule 8.1115(a): "Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action."

Defendant further contends that Plaintiff's proposed stipulation is not effective here because Code of Civil Procedure section 2032.320, subdivision (b) is limited to "person[s] for whose personal injuries a recovery is being sought." Defendant argues "[t]he legislature plainly intended for this stipulation to apply only in a personal injury case involving physical injuries, otherwise it would not have specifically utilized the terms 'personal injuries' and 'physical injuries' in subsections (b) and (c) of CCP Sec.2032.320." (Reply, 7:25-28.)

Here, the Court agrees that Plaintiff's opposition chiefly relies on unpublished trial court rulings upon which this Court cannot rely. However, Defendant's authorities, while citable, are not on point either. Fuentes v. Perez (1977) 66 Cal.App.3d 163, 168 distinguishes physical injuries from emotional distress damages for the purposes of deciding whether a judgment for emotional distress was erroneously entered. Similarly, Upasani v. State Farm General Ins. Co. (2014) 227 Cal.App.4th 509, 512, 521 discusses the distinction for purposes of ascertaining whether emotional distress damages were covered under certain insurance policies.

Neither case dealt with IMEs. These cases are relevant only to the extent that they show case law recognizes a distinction between physical injuries and emotional distress damages. As neither party establishes authorities supporting their interpretation, the Court relies on the text of the provision. The Court finds Defendant's argument that the provision expressly provides "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" well taken as Plaintiff is not a person for whose personal injuries a recovery is being sought. (Code Civ.

Proc., Sec. 2032.320, subd. (b).) Moreover, the Court looks to Article 2 which is titled "Physical Examination of Personal Injury Plaintiff." (See Code Civ. Proc., Sec. 2032.210, et seq.) Article 3 then covers "physical examination other than that described in Article 2...or...mental examination." (See Code Civ. Proc., Sec. 2032.310, et seq.) Defendant moves under Code of Civil Procedure section 2032.320, subdivision (a). In the context of Article 2, Code of Civil Procedure section 2032.320, subdivision (b) appears to carve out an exception for personal injury cases in which a mental examination is being sought on top of the physical examination that a personal injury party is entitled to under Code of Civil Procedure section 2032.220. (See, gen., Weil & Brown, Cal.

Prac. Guide Civ. Proc. Before Trial (The Rutter Group 2026) P. 8:1567 ["Personal injury plaintiff may avoid mental exam by offering appropriate stipulations:...Where plaintiff claims unusual psychiatric symptoms, a defense mental exam is clearly proper. But where the mental suffering claimed is no different than that generally associated with physical injury, forcing plaintiff to submit to a full-blown psychiatric exam may be pure harassment."].) Based on the text of the statute, the Court agrees that the inclusion "of a person for whose personal injuries a recovery is being sought" and "mental and emotional distress over and above that usually associated with the physical injuries claimed" show that the Legislature did not intend for Code of Civil Procedure section 2032.320, subdivision (b) to apply to actions where no physical injuries are claimed.

Therefore, the standard is good cause. Here, the Court finds that Plaintiff puts her mental state in controversy. Plaintiff plainly alleges a claim for emotional distress damages in the complaint. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 839 ["a party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy."].) Further, the Court finds that Defendant establishes good cause for the mental examination. As raised by Defendant in reply, the operative complaint continues to seek past and future emotional distress damages. (Vinson, supra, 43 Cal.3d at p. 847 ["Such examinations may ordinarily be considered only in cases in which the alleged mental or emotional distress is said to be ongoing."].)

Moreover, the Court finds that Defendant meets the procedural requirements by specifying the nature, manner, and physician for the mental examination as well as shows that Plaintiff's mental state is in controversy and that there is good cause to compel a mental examination. Accordingly, Defendant's motion to compel the mental examination of Plaintiff is GRANTED. Plaintiff Lorena Cuevas is ORDERED to appear for a mental examination as set forth in the motion. Case Number: 25NWCV04647 Hearing Date: September 10, 2026 Dept: P CREDITORS ADJUSTMENT BUREAU, INC. v.

PRO WAY FUMIGATION