Sophie Strasburg et al vs Santa Barbara Unified School District et al

Case Number

20CV00740

Case Type

Hearing Date / Time

Fri, 11/22/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For all reasons discussed herein, the motion of defendants to compel the mental examination of plaintiff is denied.

The first amended complaint (FAC) filed on February 19, 2021, by plaintiffs Sophie Strasburg (Sophie), Gidget Strasburg (Gidget), Keven Strasburg (Keven), and Summer Strasburg (Summer) (collectively, plaintiffs) is the operative pleading in this matter. (Note: Due to common familial surnames, the court will refer to plaintiffs individually by their first names to avoid confusion. No disrespect is intended.) As alleged in the FAC:

On February 22, 2019, Sophie, who was 17 years old at the time, was attending San Marcos High School (San Marcos) and was chosen to perform in a variety talent show for the school’s theater department. Under the direction of San Marcos and through Shannon Saleh (Saleh), Suzette McCormick (McCormick), and Alex Sheldon (Sheldon), Sophie was directed to wear an oversized hippopotamus costume as part of her act. (Note: Available information indicates that Sheldon was erroneously sued as “Alex Shelton”.) The costume Sophie wore was poorly maintained, too large, and created visual impairment. In addition, the lighting in the auditorium was insufficient.

During her performance, Sophie fell approximately four to five feet off an elevated stage, severely injuring her left ankle. Keven, Gidget, and Summer were in the audience and witnessed Sophie fall and injure herself. Keven, Gidget, and Summer each suffered mental anguish, emotional trauma, and distress from the event.

Sophie was taken to the emergency room where she was diagnosed with multiple fractures in her left ankle, foot, and the lower end of her left fibula. Defendants encouraged, organized, sanctioned, and presented the variety show, while failing to provide a safe environment for Sophie. As a result of Sophie’s injuries, she was required to utilize a knee scooter to travel around the school.

On April 23, 2019, Sophie was on her way to the theater department as required by San Marcos when she hit a curb. Sophie was thrown from her knee scooter breaking her left elbow and suffering injuries to her face. San Marcos High failed to provide safe handicap access around the campus for Sophie and failed to properly maintain the premises, resulting in substantial injury to Sophie.

Plaintiffs allege five causes of action: (1) negligence (against San Marcos, Saleh, McCormick, Sheldon, and Santa Barbara Unified School District); (2) premises liability (against San Marcos, Saleh, McCormick, Sheldon, and Santa Barbara Unified School District); (3) negligent supervision of a minor (against San Marcos, Saleh, McCormick, Sheldon, and Santa Barbara Unified School District); (4) negligence (against San Marcos and Santa Barbara Unified School District); and (5) premises liability (against San Marcos and Santa Barbara Unified School District).

On October 19, 2023, SBUSD, Saleh, McCormick, and Sheldon (the SBUSD defendants) filed a cross-complaint against Christopher “Woody” Locke (Locke) asserting four causes of action: (1) indemnification; (2) apportionment of fault; (3) negligence; and (4) intentional tort. In the cross-complaint, the SBUSD defendants allege that Locke willfully breached his duty to use reasonable care in supervising students for the Royal Blue Variety Show at San Marcos which caused Sophie’s injuries.

The SBUSD defendants previously filed a motion for an order compelling the mental examination of Sophie. The motion was denied on January 26, 2024.

Following additional discovery, the SBUSD defendants have filed a second motion for an order compelling the mental examination of Sophie. The SBUSD defendants assert that good cause exists for the proposed examination because Sophie’s mental condition is in controversy, Sophie has refused to submit voluntarily to a mental examination, and the SBUSD defendants cannot adequately and properly prepare a defense to Sophie’s claims without information relating to the nature and extent of Sophie’s injuries.

Sophie opposes the motion.

Analysis:

A party may obtain discovery by means of a mental examination of another party to an action in which the mental condition of that party is in controversy. (Code Civ. Proc., § 2032.020, subd. (a); Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887 [mental condition of party suffering ongoing mental distress as a result of the alleged conduct is “in controversy” in action seeking damages for the ongoing distress].) A mental examination of a party 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, subd. (c)(1).)

A party seeking discovery by mental examination must obtain leave of court. (Code Civ. Proc., § 2032.310, subd. (a).) The motion 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[,]” and must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2032.310, subd. (b).) A court may grant a motion for a mental examination only for good cause. (Code Civ. Proc., § 2032.320, subd. (a).)

“If a party stipulates as provided in [Code of Civil Procedure section 2032.320,] 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.” (Code Civ. Proc., § 2032.320, subd. (b.).) The stipulation must include “that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed” and “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., § 2032.320, subd. (c)(1) & (2).)

By way of the first motion, that was denied, the SBUSD defendants submitted a declaration of counsel, Cyrus Khosh-Chashm, who declared that Sophie alleges injuries and damages which include“[e]motional distress, [e]motional harm, [p]ain and suffering, [m]ental anguish, [e]motional trauma, [f]rustrations, [b]ottling up emotions, [] anxiousness, [] high stress levels, [] digging nails into herself, [] lower grades, [] depression, [] extreme anxiety, [] apprehension, [] panic, [] unhappiness, [] weekly crying, [] suicidal thoughts, and [] fear of not being her “old self”, and that Sophie has seen a therapist for these injuries and damages.” (Khosh-Chashm 10/20/2023 Decl., ¶ 2 & Exhs. 1 & 2.)

In support of the present motion, the SBUSD again submits a declaration of  Khosh-Chashm. Khosh-Chashm again reiterates the above claimed injuries (Khosh-Chashm Decl., ¶ 2) and then declares that after the initial motion was filed, “[p]laintiff’s counsel suggested three new mental and emotional distress claims in her objections: grief, humiliation, and loss of enjoyment of life.” (Khosh-Chashm Decl., ¶ 3.) Khosh-Chashm also declares that he deposed Sophie’s “best friend Katie Ohrm,” who testified that Sophie’s doctor wanted “to give her a 5150 . . . because of her suicidal tendencies and her self-harm.” (Khosh-Chashm Decl., ¶ 5.)

As was the case in the first motion, the SBUSD defendants acknowledge that plaintiff’s counsel has provided a signed stipulation pursuant to Code of Civil Procedure section 2032.320, subds. (a)-(b), but continue to complain that Sophie’s counsel did not provide a specific list of the injuries that Sophie will claim at trial. As was explained to the SBUSD defendants in the first denial of their motion:

Giving the statutory language contained in subdivision (c) of Code of Civil Procedure section 2032.320, a plain and commonsense meaning, there exists no express or implied language to suggest that Sophie is required to provide the SBUSD defendants with a list of her specific physical injuries in or in connection with the stipulation. (Code Civ. Proc., § 2032.320, subd. (c) [setting forth specific matters that must be included in a stipulation]; Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190 [courts must follow the plain meaning of statutory language].) In addition, the SBUSD defendants offer no legal authority to support their contention that Sophie is required to provide a specific list of her physical injuries under circumstances present here.

The stipulation fully complies with the Code section by including the precise language called for by the section, and it has the intended effect of allowing Sophie to avoid a mental examination by stipulating that: (1) “No claim is being made by Plaintiff, Sophie Strasburg for mental and emotional distress over and above that usually associated with the physical injuries claimed,” and (2) “No expert testimony regarding this usual mental and emotional distress will be presented at trial in support of Plaintiff Sophie Strasburg’s claim for damages.” (Andrade Decl., ¶ 10 & Exh. SRA-8.)

Although the SBUSD defendants argue to the contrary, this is really a request for reconsideration.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

“The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)

The SBUSD defendants are several months late in seeking reconsideration and have not presented any new or different facts, circumstances, or law. The motion will again be denied.

As an additional observation: the motion fails because it is not specific as to the tests that would be given to Sophie.

“The word “ ‘specify’ ” means to speak of fully or in detail. (Oxford English Dict. (2d ed. CD–ROM 1989).) The plain meaning of section 2032.320, therefore, is that the court is to describe in detail who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. The way to describe these “ ‘diagnostic tests and procedures’ ” - fully and in detail - is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)

Here, the court cannot fashion an appropriate order because the SBUSD defendants have failed to list the tests to which they seek to have Sophie submit. There is no proposed order and the motion only states: “The examination will include an evaluation of Plaintiff’s mental and emotional distress claims that were allegedly sustained as a result of the incident that gave rise to this lawsuit. The mental examination typically consists of a history to assist in the interpretation of the test results and the administration of tests that are carefully selected to evaluate the nature and scope of the emotional damages being claimed by Plaintiff. It will also include the taking of Plaintiff’s background, medical history, facts of the incident(s) which form the basis of this litigation, and Plaintiff’s course of treatment.” (Motion, p. 2, ll. 10-16.) Not a single specific test is named. The motion also fails for this reason.