HERNANDEZ vs. MONTGOMERY

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RULING.

HERNANDEZ vs. MONTGOMERY

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TENTATIVE RULING(S):

Motion(s): (1) Motion to Compel Independent Mental Examination

(2) Motion for Joinder

Movant(s): (1) Defendant Options for All, Inc.

(2) Defendant Alejandro Chacon (Joinder)

Respondent(s): Plaintiff Eddie Hernandez, Jr., by and through his Guardian ad Litem,

Eddie Hernandez

______________________________________________________________________

Before the Court is Defendant OFA’s motion to compel Plaintiff to undergo an independent

mental examination (IME) and Defendant Chacon’s joinder. Plaintiff concedes good cause exists

for him to undergo a mental examination but opposes the motion. Plaintiff seeks to place the

following conditions on the exam: (1) allow Plaintiff’s GAL to be present for the full examination;

(2) require that the raw testing data from the exam be provided to Plaintiff’s counsel; (3) require

that information collected during the exam be limited to certain background information; and (4)

require that Plaintiff not be required to pay a cancellation fee in the event he fails to

appear. OFA replies.

ANALYSIS

The parties agree that there is “good cause” for Plaintiff to undergo an IME

examination. (Farias Decl. ¶3.) OFA’s motion provides the information required under Code of

Civil Procedure section 2032.310, subdivision (b).

Specifically, Plaintiff is to undergo an examination performed by Dr. Scott Grover, a board-

certified clinical psychologist. The examination is to take place at 250 West 1st Street, Suite 317,

in Claremont on a date to be set by the Court, and begin at 9:00 a.m. and conclude at 5:00

p.m. (Nguyen Decl. Ex. B.)

The examination will include the following tests: (1) Autism Spectrum Quotient-50; (2)

Ritvo Autism Asperger Diagnostic Scale-Revised; (3) Wechsler Abbreviated Scale of

Intelligence-Second Edition; (4) Wechsler Adult Intelligence Scale (4th Edition); (5) Minnesota

Multiphasic Personality Inventory-3rd Edition; (6) Million Clinical Multiaxial Inventory; (7)

Personality Assessment Inventory; (8) Beck Depression Inventory; (9) Patient Health

Questionnaire; (10) Post-Traumatic Stress Checklist; (11) Life Events Checklist; (12) Trauma

Symptom Inventory-2; (13) Generalized Anxiety Disorder Scale. (Ibid.)

As discussed above, Plaintiff does not oppose the IME, and good cause exists to require

Plaintiff to undergo an IME. Therefore, only the conditions Plaintiff seeks to impose regarding the

IME are at issue.

Condition 1—Plaintiff’s GAL be Allowed to Attend

OFA seeks a one-on-one examination between Dr. Grover and Plaintiff. Plaintiff seeks to have

his GAL attend the examination.

OFA argues that having another individual attend the IME would compromise the exam. Relying

on Edwards v. Superior Court (Santa Clara Unified School District) (1976) 16 Cal.3d 905

(Edwards), OFA asserts that mental examination should be conducted one-on-one, without third

party interference. The Edwards Court reasoned that “to require the addition of other persons in

the examining room would be distracting, if not disrupting. [...] [O]f paramount importance is the

concern that the examination be valid and have meaning, free from outside influences which

might disrupt it.” (Id. at p. 911.)

Dr. Grover states that the integrity, reliability, and validity of his evaluation would be

compromised if another person besides himself and Plaintiff are present during the exam.

(Grover Decl. ¶ 10.)

Plaintiff argues that OFA has not explained why, based upon his “specific profile,” the “default

one-to-one examination format” should not be changed.

Plaintiff’s counsel states that Plaintiff is 24 years old with Autism Spectrum Disorder. (Farias

Decl. ¶2.) Due to Plaintiff’s condition, at times, Plaintiff’s father and aunt have had to physically

intervene when he became agitated or had emotional outbursts. (Ibid.) Counsel asserts that on

multiple occasions, Plaintiff’s behavior nearly led to public physical confrontations with others.

(Ibid.)

Plaintiff asserts, without citation, that “there are well-recognized circumstances where it may be

not just appropriate but necessary for someone other than the examiner to be present during

testing.” Plaintiff suggests such situations include where an interpreter is needed to assist or

when a parent must be present for a child.

OFA replies arguing that Plaintiff sat for deposition, appeared at litigation proceedings, and other

public events without incident. OFA also argues that Plaintiff has not presented any competent

medical evidence to establish that Plaintiff’s GAL is necessary in the IME.

Given the strong preference for conducting mental examinations on a one-on-one basis, the

Court denies Plaintiff’s request to have his GAL present in the room during his examination.

Plaintiff has not sufficiently demonstrated that his condition requires such an intrusive

measure. Instead, the Court orders that Plaintiff’s GAL be allowed to remain nearby (not in the

examination room) while the IME goes forward so he is available if needed.

Condition 2—Production of Raw Data

Relying on Randy’s Trucking, Inc. v. Superior Court (Buttram) (2023) 91 Cal.App.5th 818, 833

(Randy’s Trucking), Plaintiff asks that the raw testing data from the exam be produced to his

counsel. Plaintiff argues that he should be allowed to evaluate the data from the exam without

incurring the expense of a retained expert.

OFA argues that requiring Dr. Grover to provide such data to a “non-expert” would conflict with

ethical standards and cause him to violate his licensing board’s requirements. OFA does not

take issue with producing the raw data to another expert. (Grover Decl. ¶ 20.)

In Randy’s Trucking, the Court addressed the disclosure of test materials and data from a mental

examination. The Court found no statutory authority precluding a trial court from ordering the test

materials or data be produced when ordering a mental examination. (Id. at p. 834; see also

Carpenter v. Superior Court (Yamaha Motor Corporation, USA) (2006) 141 Cal.App.4th 249, 271

[“While there is no express statutory authority for [the plaintiff’s] position, neither is there

statutory authority precluding a trial court, in its discretion, from ordering the disclosure of the

written test questions and answers.”] (Carpenter).) The Carpenter Court further recognized that

even if the tests are copyrighted documents, providing a copy of the test questions in compliance

with an order for production is not shown to constitute a copyright violation. (Carpenter, supra,

141 Cal.App.4th at p. 273.) The Randy’s Trucking Court concluded that a trial court may, but is

not required to, order the production of test materials and data to the plaintiff’s attorney. (Randy’s

Trucking, supra, 91 Cal.App.5th at pp. 835, 837.)

Given that that the Court has recognized that production of the raw data is permitted to a “non-

expert” and OFA has no issue with producing the information to another expert, the Court will

allow Plaintiff’s counsel to obtain the raw testing data subject to a protective order. The

protective order should provide the following: (a) raw testing data shall not be disclosed to

anyone other than Plaintiff’s attorney and retained psychological expert(s); (b) raw data will only

be used for purposes of this action and only by the necessary parties; and (c) all copies of the

raw data will be destroyed within 30 days of completion of this litigation.

Condition 3—Limitations on Questioning

OFA states it has “no interest in Plaintiff’s sexual history” and the parties agree that such

information has no relevancy to the matters at issue. (Faria Decl. Ex. A.) Plaintiff asks that this

concession be made a limitation on the IME.

Plaintiff also seeks to further limit the exam to ensure that the examination is not used as a

“second deposition” of Plaintiff. However, Plaintiff does not specify how such limitations should

be phrased or monitored for compliance.

While agreeing that Dr. Grover will “not inquire into Plaintiff’s sexual history or family member’s

private health information,” OFA argues that any further limitations are not feasible. OFA asserts

that the questioning of Plaintiff will be dependent on his specific individual circumstances and the

information that emerges during the exam. The Court is not inclined to further limit the subject

matter of Plaintiff’s IME.

Neither a party, an attorney, nor the court is in a position to define the questions relevant to a

psychiatric evaluation. (Edwards, supra, 16 Cal.3d at p. 911.) A court may not “properly limit

[examiner’s] questioning of plaintiff with respect to other matters affecting plaintiff’s psychiatric

condition, such as symptoms, perceptions, relationships, et cetera.” (Golfland Entertainment

Centers, Inc. v. Superior Court (Nunez) (2003) 108 Cal.App.4th 739, 745-46.)

Given it is infeasible to predetermine what areas of inquiry may be relevant to Plaintiff’s IME, the

only limitation this Court is imposing is questions relating to Plaintiff’s sexual history and his

family members’ health information during the IME, as agreed to by counsel.

Cancellation Terms

OFA asks that Plaintiff agree to Dr. Grover’s cancellation policy as a condition of the IME.

Plaintiff asserts he will make his best efforts to appear for any scheduled IME but, given his

cognitive limitations and behavior issues, circumstances could arise requiring late modifications

to the scheduled exam. Plaintiff argues he should not be required to pay any fee should his

condition prevent his appearance.

OFA argues it is standard practice for an expert who conducts IMEs to have a cancellation

policy. However, OFA provides no authority for the proposition that a plaintiff must agree to pay

a cancellation fee as a condition for the Court to order the IME.

Code of Civil Procedure section 2032.410, provides the mechanism for sanctions in the event a

party fails to appear for an IME. Nothing in the statute requires a plaintiff to agree, upfront, to pay

sanctions for failure to appear.

Therefore, the Court is not inclined to make any predetermination regarding Plaintiff’s

responsibility to pay Dr. Grover’s cancellation fee. Plaintiff’s responsibility to pay any such fee

should be address only if it becomes an issue and is the subject of an appropriate sanctions

motion.

Defendant Chacon’s Joinder

Joinder is appropriate only where the joinder seeks affirmative relief on behalf of the joining party

and joins in the arguments made by the motion being joined. (Barak v. Quisenberry Law Firm

(2006) 135 Cal.App.4th 654, 661.)

Defendant Chacon’s joinder simply states he “joins in full” OFA’s motion and provides a

supplemental memorandum in support. However, Chacon’s joinder contains no request for

affirmative relief on his behalf and Chacon makes no showing that he is seeking to obtain

Plaintiff’s IME or that Dr. Grover is his expert.

As a result, the Court denies Defendant Chacon’s joinder.

RULING

For all the reasons stated above, the Court Grants Defendant OFA’s motion to compel Plaintiff to

attend an IME on [a date to be set by the Court during the hearing on this motion] at 9:00 a.m.

before Dr. Grover at 250 West 1st Street, Suite 317, in Claremont with the following conditions:

(1) Plaintiff’s guardian ad litem, Eddie Hernandez, is not permitted in the room while the

IME is conducted but shall not be prevented from remaining nearby on the premises.

(2) Defendant shall produce the raw testing data to Plaintiff’s counsel subject to the

following protective order: (a) raw testing data shall not be disclosed to anyone other

than Plaintiff’s attorney and retained psychological expert(s); (b) raw data will only be

used for purposes of this action and only by the necessary parties; and (c) all copies

of the raw data will be destroyed within 30 days of completion of this litigation; and

(3) During the IME, Dr. Grover shall not inquire about Plaintiff’s sexual history or the

health information relating to his family members.

Deny Defendant Chacon’s motion for joinder.