Board of Trustees v. Superior Court

[379]

PIERCE, P. J.

Petitioner seeks a writ of mandate directing respondent court to order real party in interest Porini to submit to a psychiatric examination under Code of Civil Procedure section 2032, subdivision (a).

Petitioner contends that the trial court’s refusal to order Mrs. Porini to submit to psychiatric examination was an abuse of the trial court’s discretion because: (1) good cause for the examination has been shown

■

and (2) information discovered in the examination would not be subject to the psychotherapist-patient privilege of Evidence Code section 1014. We reach the conclusion that the peremptory writ must issue.

Mrs. Porini was a school teacher for petitioner until suspended August 31, 1965, on charges that she was incompetent due to a mental disability. In order to dismiss Mrs. Porini after the suspension, petitioner filed the necessary superior court action. In such an action the trial court must decide whether the charges against the teacher are true, and whether the disability warrants dismissal or if a leave of absence will suffice. (Ed. Code, §§ 13412, 13437.) Before her suspension Mrs. Porini was examined by a psychiatrist employed by petitioner. That psychiatrist’s last examination was August 19, 1965. He testified that at that time Mrs. Porini was incompetent due to mental disability. The case was not tried until more than a year after that examination. There was no testimony at the trial showing that Mrs. Porini was then suffering from a mental disability. She offered psychiatric testimony— recent to the hearing—stating a positive opinion that she had had psychiatric problems but had responded to treatment and was then mentally well. The trial court held Mrs. Porini was incompetent as a teacher due to mental disability but it did not discharge her. Instead, it required her to take a leave of absence. At the end of her leave, however, it required her to assume the burden of proving her competency.

On appeal (263 Cal.App.2d 784) this court' held that the trial court could not legally base a decision in proceedings under Education Code section 13412 et seq. upon out-of-date expert testimony. Petitioner on retrial by proceedings framed under Code of Civil Procedure section 2032 sought the appointment by the court of a psychiatrist to make a current examination and report with the necessarily implied consequence that the psychiatrist thus appointed would be available to testify. The trial court denied the request and refused the order.